State as pimp: sexual slavery in South Africa

Abstract

The disturbing prevalence of sexual slavery in South Africa is variously attributed to extreme poverty, unemployment, war, lack of food, and traditional practices that make it acceptable to treat women as commodities. Such ‘causes’ are better understood as enabling conditions. The demand for sex workers, organised criminal syndicates and the failure of legal imagination are the real drivers of the South African market. The authors address this failure of legal imagination and suggest how the constitutional prohibition against slavery can be used to develop a legal doctrine of sexual slavery, as well as on appropriate set of remedies, that will assist the State in its efforts to eradicate sexual trafficking.

1. Introduction

No one may be subjected to slavery, servitude or forced labour.2

The galley ships may be gone. The holding cells on the Cape Verde islands may be museums. The positive law that expressly condones traditional forms of chattel slavery has been almost completely abolished. But, for the estimated 800 000–900 000 people bought and sold annually around the globe (US Department of State, 2003: 7), the purging of such laws from the statute books offers little solace. Human trafficking weighs in as the third biggest profit-earner for international organised crime –after drugs and armaments – at $7 billion per annum (IOM, 2003: 16).

In this article, we look at a particularly pernicious form of contemporary bondage: sexual slavery. We are not, as constitutional lawyers, primarily engaged in a project that sheds additional light on the phenomenon itself. That task we leave to the people who devote themselves to the study of trafficking and sexual slavery. Our aim is to explain to academics in other disciplines how the positive law still services the industry in South Africa, and how the basic law – the Final Constitution – can be deployed on behalf of those still subject to this institutionalised form of rape.

We do not pretend that such a complex phenomenon as human trafficking and sexual slavery can be eradicated by alterations in extant constitutional doctrine or by minor amendments to the existing statutory regime. Such a claim would be risible. The law can, however, make marginal groups such as sexual slaves visible, and in making them visible, the law can be used to mobilise the state to deploy those resources required to move these women and children from the margins – where their very survival is in doubt – closer to the median, where flourishing is possible.

That the class of people with whom we are concerned are predominantly women and women who are treated ‘as far less than equal’ ought to help the reader to see how law can function as a tool of development. The women we discuss in these pages are, to paraphrase Amartya Sen, ‘missing women’ (Sen, 1990, 1992, 1999: 191). The deprivations that sexual slaves suffer are indicative of pervasive patterns of neglect and abuse that women, in general, experience. Women will never be the equals of men when we continue to permit them to be treated as chattel. Thus, while ending iniquitous practices as trafficking and sexual slavery is a good in itself, the greater good is the agency of women. Constitutional doctrine has a great deal to say about law and conduct that impair the agency and the formal equality of women. We, too, have a great deal to say about how constitutional doctrine can be reconstructed so as to eliminate those depredations of the state that continue to effect the inequality of women qua sexual slaves.

2. Sexual slavery in South Africa

Hard data on the actual scale of human trafficking for the purposes of sexual exploitation in South Africa remains very limited. However, recent reports from the International Organisation for Migration (IOM) and South African Law Commission (SALC) provide a comprehensive, if grim, assessment of South African-based trafficking activities. The IOM and the SALC both note that, while South Africa serves as both source and transit hub for sexual trafficking activities, it functions primarily as a final market for tens of thousands of women (SALC, 2004: 11). Although some commentators have criticised the reliability of these statistics (Leggett, 2004), they remain the most detailed available.

Most women sold into sexual slavery in South Africa are refugees from around the continent. The remainder of South African sex slaves are sourced primarily from Lesotho, Mozambique, Malawi, Thailand, China and Eastern Europe. The methods of conniving and coercion employed to ‘recruit’ women to South Africa are as varied as their source. Some are enticed by promises of better jobs or marriage. Others are abducted. But perhaps the most distressing fact of all is that most are sold by members of their family (Molo Songololo, 2000: 11; IOM, 2003: 16, 65).

Refugees already in South Africa from other African countries often arrange for close female relatives to join them. Once these women receive asylum-seeker status, their male relatives force them into prostitution (IOM, 2003: 20–34).3 The victims are generally unable to speak the language, do not know the lay of the land and face unsympathetic, if not exploitative, immigration officials. Even when women are able to overcome these impediments, an extensive criminal refugee network often tracks down and recaptures them. The fortunate few able to access the law are then placed in the unenviable position of choosing between deportation to an inhospitable home or remaining ‘enslaved’ but ‘with’ their family (IOM, 2003: 20–34).

The Lesotho–South Africa slave trade takes the following form. Women as young as 13 are abducted, or lured, from the streets of Maseru or other border towns. They are taken to private homes in nearby Free State towns where they are repeatedly raped for extended periods. These young women are often returned to Lesotho or simply abandoned. The IOM report contends that the brazen nature of this practice reflects high degrees of police and immigration official complicity (IOM, 2003: 34–47).

Approximately 1 000 Mozambican women are trafficked annually in South Africa (IOM, 2003: 63). Some young girls are actively recruited with promises of a lucrative job in a big South African city. Others are picked up at taxi ranks while searching for a lift. After crossing the border illegally, most are subjected to an ‘initiation’ – rape – at transit houses near the border. The girls are then sold as ‘wives’ to men on the mines in the West Rand for R650 – or to South African brothels for R100 (IOM, 2003: 47–64).

The trafficking of women from Malawi is underwritten by a custom called kuhaha (IOM, 2003: 65). This set of coercive sexual initiation practices – intended to drive young women into early marriage – make young Malawian women particularly vulnerable to South African truckers and to Malawian businesswomen who promise them jobs and marriage in South Africa. Most are raped en route. They are then sold to a brothel or retained as personal sex slaves and rented out to friends (IOM, 2003: 64–7, 85–93).

Almost 1 000 Thai women are tricked into coming to South Africa each year with promises of high-wage restaurant work. Upon arrival, these women are auctioned off at restaurants for R15 000 to R25 000, kept in closely guarded private homes in Johannesburg and are then forced into sex work to repay their ‘debt’ (IOM, 2003: 93–108). Chinese Triads bring young women into South Africa to work in exclusive and well-known Chinese clubs. Most of these victims are relatively well educated and have been convinced that a legitimate market exists for their skills. As with most cases of such bondage, ‘debts’ of R75 000 make discharge almost impossible (IOM, 2003: 108–123).

The problem is not exclusive to South Africa. Women are sourced from all over the continent and distributed throughout the Middle East, Asia and Europe. It has been estimated that as many as 200 000 young women are brought to market in West Africa alone (Adepoju, 2005: 76–80).

The terms used in the IOM, SALC, Adepoju and Songololo studies – ‘source’, ‘transit hub’, ‘market’ and ‘organised crime’ – often mask the brutality of an ‘industry’ whose one and only commodity is rape. Moreover, the use of such terms as ‘prostitution’ shifts responsibility for the repeated rape of women and children from the criminals engaged in this ‘trade’ to the women and children themselves (Argibay, 2003: 386–7). Such legal obfuscation of what would – in times of war – be described as crimes against humanity, conceals the high degree of state complicity that makes this most ancient and yet coetaneous form of chattel slavery possible. So while the disturbing prevalence of sexual slavery in Southern Africa is variously attributed to extreme poverty, unemployment, war, lack of food (IOM, 2003: 15–21) and traditional practices that commodify women and make their sale acceptable (SALC, 2004: 27–8), such ‘causes’ are better characterised as enabling conditions. They only make trafficking easier. The demand for sex workers, the existence of organised criminal syndicates, the failure of legal imagination and the lack of political will drive the South African market (Balos, 2004).

3. How domestic law and international law suborn sexual slavery

It is commonplace these days to speak of the law as both the cause of and the cure for what ails us, but this potentially trite observation retains real purchase for our analysis of law as a driver of sexual slavery. In this section, we look at how constitutional doctrine, the statutory framework for immigration, and customary international law conspire to make the eradication of sexual slavery more difficult than it might otherwise be.

3.1 Constitutional barriers

S v Jordan & Others (2002) evinces the kind of failure of legal imagination that continues to drive the South African market in sexual slavery. In Jordan, the Constitutional Court rejected equality, dignity, privacy and freedom of profession challenges to those sections of the Sexual Offences Act that criminalise prostitution.4 The majority reasoned as follows:

If the public sees the recipient of reward as being ‘more to blame’ than the ‘client’, and a conviction carries a greater stigma on the ‘prostitute’ for that reason, that is a social attitude and not the result of the law. The stigma that attaches to prostitutes attaches to them, not by virtue of their gender, but by virtue of the conduct they engage in. That stigma attaches to female and male prostitutes alike. I am not persuaded by the argument that gender discrimination exists simply because there are more female prostitutes than male prostitutes, just as I would not be persuaded if the same argument were to be advanced by males accused of certain crimes, the great majority of which are committed by men. (2002: paras 16–7)

The majority's commitment to a very strong form of metaphysical autonomy – a form of autonomy that makes all individuals morally and legally culpable for actions that issue ineluctably from their circumstances – dramatically fails the victims of sexual trafficking. Sexual trafficking is about the sale and exploitation of women – of people who have little chance, and no choice, in life's wheel of fortune. Jordan has nothing to say about continuing state complicity in a legal regime that condones institutionalised rape. Perhaps this characterisation of Jordan's weltanschauung seems unfair. We think the majority judgment speaks for itself:

It was accepted that they have a choice, but it was contended that the choice is limited or ‘constrained’. Once it is accepted that [the criminalisation of prostitution] is gender-neutral and that by engaging in commercial sex work prostitutes knowingly attract the stigma associated with prostitution, it can hardly be contended that female prostitutes are discriminated against. (2002: para. 16, emphasis added)

How ‘knowing’ that stigma attaches to an event that takes place under conditions of compulsion makes a prostitute culpable remains unclear. The minority, although sympathetic, offers more of the same:

Their status as social outcasts cannot be blamed on the law or society entirely. By engaging in commercial sex work, prostitutes knowingly accept the risk of lowering their standing in the eyes of the community. In using their bodies as commodities in the marketplace, they undermine their status and become vulnerable. (2002: para. 66, emphasis added)5

The Jordan majority and minority's approach may hold in the context of ‘voluntary’ forms of prostitution.6 It cannot be applied, without real violence being done to the word ‘voluntary’, to victims of sexual slavery.

We have little doubt that the Jordan Court, if now asked to opine on the status of sexual slaves, might come to a somewhat different conclusion about the autonomy of at least some prostitutes. However, even if the Jordan Court did not actually speak to the constitutional protection afforded prostitutes forced into the sex trade, it has left us with the impression that this most vulnerable and marginalised class of individuals is not especially deserving of our solicitude and that they have, somehow, brought this fate upon themselves. This errant belief constitutes a cultural – and not just a legal – practice, which makes the manumission of sexual slaves that much more difficult.

3.2 International impediments

The main instrument for the regulation of international trafficking is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime (United Nations, 2000a). Two other international human rights instruments support the Palermo Protocol's efforts to suppress trafficking: the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The Beijing Declaration of 1995 and its ‘Platform for Action’ do not operate as law in this domain. However, the Declaration, the Platform and recent ‘Beijing + 10’ Declaration recognise the magnitude of the problem and commit the signatories to combating forced prostitution.

None of these instruments, jointly or severally, have had any appreciable impact on human trafficking and sexual slavery. All of them – and the Palermo Protocol in particular – fail to identify the twofold nature of the crime. Article 3(a) of the Protocol states that trafficking is proscribed when it occurs for one of the following purposes: ‘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’ (SALC, 2004: 18–21). No South African jurist ought to lose sight of the fact that trafficking in people or their parts is, in itself, a violation of FC s 13 (Gold, 2003: 100). That this sale of human flesh is married to a state-complicit,7 and thus acceptable, form of rape, simply makes it the most abhorrent form of contemporary slavery (Argibay, 2003: 375).8

The IOM and the SALC reports suggest that the conditions of sale of women for sexual exploitation in South Africa easily satisfy the criteria for trafficking set out in the Palermo Protocol.9 However, the Protocol's preoccupation with the elimination of transnational organised crime and the fact that provisions relating to the protection of victims are discretionary, rather than mandatory, limits its efficacy as a both a model for and a tool in efforts to eradicate sexual slavery.10

3.3 Flaws in domestic laws

The current legal regime governing the victims of trafficking – and thus sexual slavery – neither affords them an opportunity to press criminal charges nor allows them to institute a claim for compensation (SAHRC, 2000: 68). The SALC has suggested that in terms of section 300 of the Criminal Procedure Act11 and section 30 of the Organized Crime Act,12 a person found guilty of a crime could have his assets sold to compensate the victim (SALC, 2004: 62). However the efficacy of this provision is severely limited for a number of reasons: (1) trafficking is not a crime; (2) they only cover patrimonial loss, not pain and suffering; and (3) any patrimonial loss is likely to be lost earnings from prostitution – and a court is unlikely compensate the victim for illegal earnings (SALC, 2004: 62).

Potential legislation to ameliorate this problem must provide sufficient safeguards in the immigration laws to enable victims to seek asylum.13 As it stands, the present legal regime fails to provide such protection and may even exacerbate the dangers to which trafficking victims are exposed. The Immigration Act (IA) states that all illegal foreigners shall be deported [IA section 32(2)]. Immigration officers are also entitled to arrest an illegal foreigner and cause her to be deported, without a warrant [IA section 34(1)]. Although the Act ostensibly makes provision for suspected illegal foreigners to be fairly treated once arrested [IA sections 34(1)(a)–(e)], neither the conditions of detention centres such as Lindela, nor the legal process to which they are generally subject, meet internationally accepted standards (SAHRC, 2000: 20–5).

Because most detainees are not addressed in a language they can understand, they have little prospect of making use of the limited due process rights to which they are entitled, let alone the benefits of substantive law that might accrue to them (SAHRC, 1999). The SALC (2004: 35) notes that 85 per cent of the women speak Portuguese, Swahili, French, an East Asian or Eastern European language. Few can converse in an official South African language. Almost all are returned to their country of origin, where they are once again vulnerable to being trafficked. An immigration regime that sanctions automatic deportation places victims in an untenable position: remain a sex slave or face deportation without compensation or protection.

4. Removing legal barriers and creating effective remedies

Having identified those aspects of the law that are best described as part of the disease of sexual trafficking, we now identify legal processes that might assist in the eradication of this illness. Law reform must take place at the level of constitutional doctrine, municipal law and international enforcement.

4.1 A working definition of slavery

One place to start–although perhaps not the most obvious–is with a working definition of slavery in terms of FC section 13. Our motivation for doing such lies in the remedies that an effective constitutional challenge might offer.

4.1.1 International law

Article 1(1) of the Slavery Convention of 1926 reads:

Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

This gloss on ‘slavery’ means that a slave need not be subject to forced labour or, indeed, any labour at all. The definition treats the bundle of entitlements that make up slave ownership much as we would treat any of the entitlements of normal property ownership. Neither normal property ownership nor slave ownership requires that the owner's entitlements be exercised (Asher, 1994: 238–9).

However, the standard notion of property rights as a bundle of discrete entitlements only does so much work with regard to the Convention's definition of slavery. The Convention's take on slavery does not contemplate disaggregating the bundle of entitlements in the self into ‘slave entitlements’ and ‘non-slave entitlements’.14 It prohibits the ownership of any entitlement in another (Asher, 1994: 239). Moreover, the Convention's definition embraces those instances where the state of slavery is entered into voluntarily (Argibay, 2003: 379–80).

The difficulty with the Convention's definition is that it has the potential to draw too many complex relationships–from the workplace to the homestead to the bed–into its orbit. We should consider control over another person's reproductive capacity or sexual activity to reflect an abuse of ‘power of ownership’. We should, however, be loath to extend this conceptualisation of slavery to such incidental infringements of autonomy as ‘curfew’ for a teenager. The virtue of the Convention's definition is that it does not reduce slavery to ‘a relatively limited and technical notion’ dependent the ‘destruction of the juridical personality’ (Bossuyt, 1987: 167). Too many contemporary forms of slavery would elude such a narrow construction (Bassiouni, 1991). The virtue of the Convention's definition is therefore also its vice.

4.1.2 Constitutional law

How, then, to best translate the overly broad protection afforded at international law into our own nascent body of constitutional jurisprudence? Or, to put the question slightly differently, when is the exercise of ‘entitlements of ownership’ of one person by another sufficient to trigger the protection afforded by FC section 13?

In terms of South Africa's extant constitutional jurisprudence, the prohibitions of slavery, servitude and forced labour are underwritten by a more basic commitment to human dignity [Dawood, 2000: para. 35; Woolman, 2005:§ 36.4(f)].15 That is, it is our understanding of dignity as a foundational value that enables us to turn FC section 13's prohibition on slavery into a narrow, operational rule. In Ferreira (1996) Justice Ackermann writes that:

Human dignity cannot be fully valued or respected unless individuals are able to develop their humanity, their ‘humanness’ to the full extent of its potential. Each human being is uniquely talented. Part of the dignity of every human being is the fact and awareness of this uniqueness. An individual's human dignity cannot be fully respected or valued unless the individual is permitted to develop his or her unique talents optimally. Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible. (1996: para. 49)

Dignity, in Justice Ackermann's account, is meant to secure the space for self-actualisation. (Self-actualisation describes a political and not a metaphysical state; Woolman, 2006.) Dignity–as defined by the Constitutional Court–also requires that individuals are treated as ends in themselves (and never solely as means), that individuals are entitled to equal concern and equal respect, and that the welfare of all individuals is a collective responsibility (Makwanyane, 1995; Coetzee, 1996; National Coalition, 2000; Satchwell, 2002; Khosa, 2004; Woolman, 2005).

Dignity, as the condition for self-actualisation, can inform our understanding of slavery in a number of ways. The value of dignity underwrites the proposition that FC section 13's proscription of slavery bars those practices where the exercise of ‘entitlements of ownership’ in one person by another ‘impair substantially’ the ability of a person to develop optimally ‘her unique talents’. The exercise of entitlements of ownership in the context of a curfew for people below the age of majority would not impair significantly the development of unique talents. The exercise of entitlements of ownership in the context of sexual trafficking and exploitation most certainly does.

Our dignity jurisprudence does more than merely proscribe the repugnant practice; it seeks to purge our legal system of all those rules of law that give aid and comfort to it. In Dawood, the Constitutional Court noted that it was not simply laws that prevented people from entering into a married relationship that constituted an impairment of individual dignity. The Dawood Court concluded that ‘any legislation that significantly impairs the ability of spouses to honour their obligations to one another would also limit that right’ (2000: paras 35–7). Given that the immigration laws under scrutiny in Dawood made it effectively impossible for the couples in question to cohabit, and that cohabitation forms a central part of a married relationship, immigration laws that significantly impaired the capacity of permanent residents to live with their spouses in South Africa were understood to constitute an unjustifiable limitation of the right to dignity (Dawood, 2000: paras 35–7).

Assuming that sexual trafficking was deemed to be a violation of the prohibition against slavery,16 then immigration legislation that has the consequence of forcing sexual trafficking victims to choose between bondage and deportation, then the provision at issue may violate the prohibition against slavery (Bassiouni, 1991: 458–9). To make the prohibition against slavery meaningful under these conditions requires that a person prosecuted under immigration laws after having escaped a slave-like state possess a reasonably robust form of legal protection (Drew, 2002: 490).

4.2 Using FC section 13 to combat trafficking

4.2.1 Finding a violation of FC section 13

Three things need to occur before we can exploit FC section 13. First, we must show that human trafficking that results in sexual slavery violates FC section 13. Secondly, we must demonstrate that the state has violated the right to be free from slavery. Thirdly, we must overcome the stigma attached to sex work so as to ensure that the Constitutional Court sees the people before it as individuals who retain their inherent dignity and who warrant judicial solicitude.

4.2.1.1 Sexual slavery is still slavery

Our earlier discussion of slavery in terms of both the Slavery Convention and South Africa's dignity jurisprudence generates the following working definition of slavery:

1. Slavery is the exercise by one person of any or all of another person's rights of ownership in herself.

2. This definition of slavery does not contemplate disaggregating the bundle of entitlements in the self into the ownership of ‘slave entitlements’ and the ownership of ‘non-slave entitlements’. It prohibits the ‘ownership’ of any entitlement in another.

3. Application of the term ‘slavery’ should be limited to those practices in which the exercise of ‘entitlements of ownership’ of one person by another ‘impair substantially’ the ability of that original owner to pursue the development of ‘her unique talents’.

4. A slave need not be subject to forced labour, or indeed, any labour at all.

5. Slavery may not be entered into voluntarily.

6. FC section 13 proscribes those rules of law – and those forms of conduct ungoverned by law – that directly and indirectly support the practice of slavery.

As a general rule, individuals sold as sex workers or forced to work as prostitutes have their rights of ownership in their selves exercised by another and have the opportunity to develop their unique talents substantially impaired. The fact that the work they are forced to engage in is sex work does not take them out of the ambit of the definition. Sexual slaves remain slaves.

FC section 13 would appear to be violated in at least two ways. First, the sale of the person into slavery as a sex worker satisfies denotations 1, 2 and 6 of the definition. Secondly, the continued coercion of the ‘slave’ into the performance of sexual acts fulfils denotations 1, 2, 3 and 6.

4.2.1.2 The state's duty of care

Our concern, however, is less with the individual acts of trafficking that constitute slavery or the coerced prostitution that perpetuate such bondage. We are concerned with the legal framework that condones, if not facilitates, these practices.

That is, although the facts of sexual slavery in South Africa suggest that state officials – often police – are directly complicit in trafficking and prostitution, our concern here is not to hang the state on each and every instance of trafficking. As we have noted already, Dawood stands for the proposition that the Bill of Rights, generally, and FC section 13 in particular, requires us to purge the legal system of rules of law that reinforce a constitutionally repugnant practice. Thus, it is enough, for our present purposes, to show that the statutory and regulatory framework in place – from the Immigration Act to the Criminal Procedure Act to the Organised Crime Act – aids and abets the practice of sexual slavery.

The factual basis for this legal conclusion has been laid out above. Under the Criminal Procedure Act and the Organized Crime Act, sexual slaves can neither press criminal charges nor institute claims for compensation against their abductors. Under the Immigration Act, sexual slaves are subject to summary deportation procedures and those not summarily deported are detained in centres that do not meet internationally accepted standards.17 Even assuming that the state does not summarily deport a given sexual slave, most detainees – as foreign language speakers – have little prospect of making use of the limited due process rights to which they are entitled. As a result, our entire criminal justice and immigration system subjects the sexual slave to Hobson's choice: remain a sex slave or face deportation without compensation or protection. This system of laws must be purged–or dramatically altered–if the legal system is to effectively proscribe the constitutionally repugnant practice of sexual slavery.

4.2.1.3 Overcoming the autonomy trap

Of course, the conclusion in the previous section might appear to raise an important question: does a system of law that promotes sexual slavery constitute a constitutionally repugnant system of law? As we have seen in our account of Jordan, we still must overcome the predisposition of our courts to find that people engaged in repugnant practices are responsible for their condition and thus not entitled to our solicitude.

A recent judgement hints at a way out of the kind of autonomy bind on display in Jordan. In Khosa v Minister of Social Development; Mahlaule v Minister of Social Development, the Constitutional Court found unconstitutional, as a violation of both FC section 9 and FC section 27 (1), the exclusion of permanent residents from the class of people entitled to a variety of social security grants: old age, disability, veterans, child support and foster care. Mokgoro J writes:

The exclusion of permanent residents in need of social-security programmes forces them into relationships of dependency upon families, friends and the community in which they live, none of whom may have agreed to sponsor the immigration of such persons to South Africa… Apart from the undue burden that this places on those who take on this responsibility, it is likely to have a serious impact on the dignity of the permanent residents concerned who are cast in the role of supplicants. (Khosa, 2004: para. 76)

Mokgoro J could well have added that permanent residents are, as supplicants, not merely dependent on family members, but quite literally at their mercy. Sex slaves would consider themselves fortunate to be supplicants. They are not just excluded from the protection of the law. Many sex slaves, as we noted above, do not speak the language, do not know the lay of the land, do not have the resources to engage corrupt immigration officials or to escape criminal syndicates. Many are enslaved by their own families. The point is not that sex slaves are excluded from some particular benefit to which another class of people is entitled. Khosa stands for the broader proposition that FC section 7(2) places the state under an obligation to protect and to fulfil the rights of all people in South Africa. As the Khosa Court rightly recognises, legal regimes that offer incentives to become members of the political community but that punish people who cannot act on such incentives – by withholding benefits or through incarceration – are perverse. These disincentives deny the affected person exactly that which the state is obliged to provide. The Khosa Court indicates that where meaningful choice is severely curtailed the state bears responsibility for creating the material conditions for genuine agency. For children, the aged and the disabled, the inability to work underwrites their claim for state support. The current inability of sex slaves to liberate themselves requires the creation of a comprehensive and coordinated state programme designed to realise their emancipation.

4.2.1.4 Positive and negative duties

Assume, for the sake of argument, that we have demonstrated that the positive law perpetuates the practice of sexual slavery in a manner that violates FC section 13. Having demonstrated the infringement of the right takes us only halfway. The payoff for such a finding is in the remedy granted. It is to the possibility of two such remedies that we now turn.

4.2.2 Order 1: a comprehensive and coordinated programme

The court's order might require that the state produce a comprehensive plan to eradicate, to prevent and to punish trafficking.18 Such a court-ordered programme should have several features. One facet of the plan ought to be detailed legislation criminalising trafficking in people (IOM, 2003: 133). In theory, traffickers can be prosecuted for kidnapping, abduction and rape under the common law and various statutes. Statutory offences include violations of the Sexual Offences Act,19 the Immigration Act20 and the Basic Conditions of Employment Act;21 but they cannot be punished for the act of trafficking itself (SALC, 2004: 54). The proposed legislation should draw on the Palermo Protocol. Indeed, the current Children's Bill incorporates the definition of trafficking in the Palermo Protocol and would give the Protocol the force of law. However, a more nuanced piece of legislation aimed specifically at traffickers is required in order to take account of practices unique to the South African sex slave trade and the actual circumstance of existing law enforcement structures. A second essential feature of an eradication plan would be the creation of a national task force on trafficking in people (IOM, 2003: 134). Such a task team was established in December 2003 (IOM, 2004a: 2) and a regional force has been created for Gauteng (SALC, 2004: 45). A third component of the plan would embrace the education of communities on the dangers of trafficking (SALC, 2004: 39).

4.2.3 Order 2: protection and vindication of the victims of sexual slavery

The court, following a finding that section 13 has been violated by the state, might, in the light of FC 7(2), order the state to ‘protect and assist the victims of… trafficking, with full respect for their human rights’ [United Nations 2000a, Palermo Protocol, art 2(b)]. This protection is even more important than the prosecution of traffickers, for while existing law possesses the resources to incarcerate traffickers it tends to exacerbate the suffering of sexual slaves.

The protection afforded by the court order ought to manifest in four discrete ways.

First, the order must demand that the state guarantee the victim adequate physical security. What this obligation ought optimally to require of the state can be found in article 6(3) of the Palermo Protocol. Article 6(3) requires state parties to:

consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in people, including, in appropriate cases, in cooperation with non-governmental organisations, other relevant organisations and other elements of civil society, and, in particular, the provision of:

• (a) appropriate housing;

• (b) counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in people can understand;

• (c) medical, psychological and material assistance; and

• (d) employment, educational and training opportunities.22

Secondly, the state ought to afford the victims of sexual slavery the opportunity to seek reparations from their traffickers. However, the creation of a more hospitable legal regime to protect and to compensate the victims of trafficking poses significant challenges. The state cannot be expected, and does not have the resources, to investigate and to prosecute every plausible claim of sexual slavery (SALC, 2004: 50).

Thirdly, the protection of victims of sexual slavery must be distinguished at law from the prosecution of traffickers. The American ‘T Visa’ system offers a constructive solution to the problem of limited prosecutorial resources.23 The T Visa is a category of visa created specifically for victims of trafficking. Only 5 000 are available each year. The victims are allowed to reside temporarily in the United States and, if deemed to be people of ‘good moral character’, after three years they may even be given permanent residence. The problem with the T Visa is that the victim must comply with any reasonable request for assistance in the prosecution of the traffickers. The victims are thereby obliged to assist the state in overcoming the dual problem of information asymmetries and limited resources. This requirement conflates the state's obligation to the victim and its obligation to eradicate trafficking. The fear associated with such a confrontation in a foreign land, and the trauma visited upon a person repeatedly subjected to rape at the hands of the person being charged, somewhat diminishes the attractiveness of the T Visa programme.24 The UN High Commissioner for Human Rights has recognised this conflation of obligations and has cautioned member states that ‘that victim protection must be considered separately to witness protection, as not all victims of trafficking will be selected… to act as witnesses in criminal proceedings’ (United Nations, 1999: 5). The UNHCR not only points up the unfairness of conditioning victim protection on effective prosecution, it notes that victims of sexual slavery are unlikely to receive proper redress unless protection and prosecution are delinked.

Fourthly, legislation must be backed up by enforcement. In recent years, the nations of southern Africa have begun to take human trafficking more seriously. South Africa has legislation in the pipeline for 2007. Whether that promise will be fulfilled remains to be seen (IOM, 2005a). Malawi and Mozambique have both made moves towards law reform (IOM, 2004b, 2005b), while in Zambia increased non-governmental organisation (NGO) action (IOM, 2004c) and a new task team (IOM, 2005b) are raising public awareness. In 2004, the Home Affairs Ministers of the Southern African Development Community (SADC) issued a statement requiring their law officials to ‘intensify measures against human trafficking’ (IOM, 2004c). As it stands, however, increased political awareness does not seem to have translated into meaningful improvement, either in the treatment of victims or the prosecution of traffickers. The primary legal tool in the international fight against trafficking, however, remains the imperfect Palermo Protocol. An adequate court order might be one in which the court retains supervisory jurisdiction over the state's efforts to cure this defect in enforcement and which requires the state or some other entity – for instance, the South African Human Rights Commission – to report back on the progress made in righting this particular wrong (Klaaren, 2005).

5. Conclusion

These last observations point up the limitations of using law alone as a vehicle for development and social transformation. No law can make the individual subjected to sexual slavery whole again. Indeed, the trauma of rape compounded by the alienation of de facto statelessness makes even the most generous set of legal remedies seem uncharitable.

That said, the modest remedies that we believe to be the appropriate response to a successful FC section 13 challenge constitute a significant improvement on the law that currently engages sexual slavery in South Africa. In the best of all possible worlds, the enhanced agency of the women manumitted from sexual slavery would, as part of a virtuous circle, enhance the agency – and thus the development – of us all (Sen, 1999). At the very least, fewer women will go ‘missing’.

Notes

²Constitution of the Republic of South Africa Act 108 of 1996, section 13.

³Although the IOM report is not especially clear on the subject, anecdotal reports suggest that not all sex slaves sold into bondage by their families have secured asylum-seeker status (IOM, 2003: 20–34).

⁵As one of the authors has written elsewhere, all of us gainfully employed, Constitutional Court judges included, commodify our bodies in exchange for remuneration (Woolman, 2003: §44.3(c)(ix)).

⁴See section 20(1)(aA) of the Sexual Offences Act 23 of 1957.

⁶Our critique of Jordan cannot be read as an implicit denial of women's agency. While we must recognise that material and legal conditions exist that impair the ability of women to shape their preferred way of being in the world, and that such obstacles to agency ought to be removed, we are naturally chary of the argument that to live life within the frame of a traditional community, or in the transgressive setting of a brothel, makes a woman's life undignified or demonstrates a lack of agency (Woolman, 2005: para. 36.5; Bhe, 2005).

⁷State complicity may take the form of a failure to adequately enforce domestic laws prohibiting the practice (Rassam, 1999: 320).

⁸While the nature of suffering in the sex trade itself may vary, sexual trafficking must be understood in terms of both slavery and rape. No meaningful volition exists. The absence of volition in the context of sex is rape (Katyal, 1993: 826: ‘If forced prostitutes today are not slaves, then neither was half of the Southern black population in 1850’).

⁹See Article 3 of the Palermo Protocol for a definition of trafficking. The Travaux Préparatoires states that ‘abuse of power’ refers ‘to any situation in which the person involved had no real and acceptable alternative but to submit to the abuse involved’ (United Nations, 2000b, Travaux Préparatoires: para. 63).

¹⁰ For example, the Protocol only applies to trafficking over borders (article 4) by a group of at least three people [article 2(a)]. As Anti-Slavery International (2002: 21) observes, these provisions may be necessary to combat international crime, but are irrelevant to a victim who has been trafficked by a single person or within national borders. As the IOM (2003) and SALC (2004) reports note, the proportion of trafficking that occurs within South Africa – especially within existing refugee communities – constitutes a substantial percentage of the total.

¹¹Act 51 of 1977.

¹²Act 121 of 1998.

¹³The Constitutional Court and the Supreme Court of Appeal have handed down two judgements recently on the constitutional protection afforded undocumented people in the face of singularly inhospitable immigration laws. The Supreme Court of Appeal, in Minister of Home Affairs v. Watchenuka, found unconstitutional regulations issued by the Minister and rules emanating from the Standing Committee for Refugee Affairs that visited blanket prohibitions with respect to employment and study on asylum seekers (2004). In Lawyers for Human Rights & Another v. Minister of Home Affairs & Another, the Constitutional Court construed several provisions of the Immigration Act in a manner that expands the level of due process to which undocumented people on board ships are entitled (2004: para. 20). Read together, the decisions support the dual proposition that our immigration laws must be interpreted in a manner that permits the actual, and not merely theoretical, exercise of every person's fundamental rights and that our immigration laws cannot be used to exact non-judicial penalties in order to further domestic policies aimed at blunting the influx of illegal immigrants.

¹⁴Slave ownership qua property ownership entails the control of any aspect of a person's autonomy – not just control over movement and commercial usage: ‘Slavery is often equated with forced labour or deprivation of liberty; however, sexual autonomy is a power attaching to the right of ownership of a person, and controlling another person's sexuality is, therefore, a form of slavery’ (Argibay, 2003: 375). See Prosecutor v. Kunarac (2002) (The Appeals Chamber of the ICTY considers ‘control of sexuality’ as a factor to be considered when determining whether the crime of enslavement was committed. The other factors listed are control of movement, control of physical environment, psychological control, measures to prevent escape, force or threat of force, duration assertion of exclusivity, cruel treatment and forced labour.)

¹⁵Justice O'Regan's oft-quoted dictum in Dawood provides a useful departure point:Human … diginty informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights … Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases howeverr, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour. (Dawood, 2000: para. 35) The Dawood dictum intimates that it is the infringement of FC section 13 (slavery) that establishes an infringement of FC section 10 (dignity) – and not the other way around. This relationship reflects the first rule of South African dignity jurisprudence. Where a court can identify the infringement of a more specific right, FC section 10 (dignity) will not add to the enquiry (Dawood, 2000: para. 35).

¹⁶Sex trafficking, forced prostitution, debt bondage, forced labour and exploitation of domestic workers are ‘obvious candidates for inclusion in the term “modern forms of slavery”’ (Rassam, 1999: 320). Rassam offers two criteria consistent with our own when attempting to determine whether a practice qualifies as a modern form of slavery: (1) extreme direct physical or psychological coercion that gives an individual or the state control over every aspect of another person's life; and (2) the presence of state complicity in the practice or a failure to adequately enforce domestic laws prohibiting the practice.

¹⁷The Immigration Act states that all illegal foreigners shall be deported [Act 13 of 2002, section 32(2)].

¹⁸In Grootboom (2001), the Constitutional Court set out the criteria by which it would assess whether the state had discharged its duty to create and to execute a coordinated and comprehensive programme designed to fulfil an obligation to promote, respect and fulfil a right (Grootboom, 2001: paras 39–46, 52, 53, 63–69, 74 83).

¹⁹Act 23 of 1957.

²⁰Act 13 of 2002.

²¹Act 75 of 1997.

²²The Law Commission recommends that the services offered to victims of trafficking should include at least ‘health care services, shelter, counselling, education and vocational training’ (SALC, 2004: 35). Gold (2003: 132): ‘Overall, victims need to feel empowered after a situation in which control was stripped from them. The ability to file private civil actions, obtain proper medical attention, and receive proper repatriation will slowly allow a victim to regain power in her own life.’

²³See Victims of Trafficking and Violence Protection Act of 2000; Hartsough (2002).

²⁴See UN High Commissioner for Human Rights: ‘[I]t is important in this context to note that victim protection must be considered separately to witness protection, as not all victims of trafficking will be selected … to act as witnesses in criminal proceedings’ (UNCHR, 1999: 5).