Legal Analysis of South Sudan’s Legal Frameworks that punish or criminalize elements of crime related to Trafficking in Persons in South Sudan
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1. Background: Trafficking in Persons **
Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children states:
(a) “Trafficking in persons” shall mean the *recruitment, transportation, transfer, harboring or receipt of persons, by means of ****the 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 labor or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) the consent of a victim of trafficking in persons to the intended exploitation shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) ‘Child’ shall mean any person under eighteen years of age.”*
Trafficking in Persons (TIP) is often referred to as “Modern Slavery” is a crime that treats human beings as commodities. Traffickers gain financial and/or non-financial illegal profits by exploiting human beings into forced labor or services, forced prostitution and other forms of sexual exploitation, organ removal, domestic servitude and/or slavery, often for many years. TIP crimes are performed in a clandestine nature and the proceeds of crimes are laundered into business ventures which make TIP crimes often difficult to uncover. TIP is executed either by a criminal network using sophisticated methods or by individuals. It happens across or within the border. Traffickers exploit a situation where policies and/or public services are lacking, capacity of public officers is inadequate, and the presence of an abundant number of vulnerable groups due to poverty, displacement, dysfunctional social structures, and other push and pull factors. TIP happens in peace times and it exacerbates during and post crisis as they create a conducive environment for TIP to flourish characterized by a dearth of economic opportunities for crisis-affected populations leading to increased reliance on negative coping mechanisms and risky survival strategies (i.e. forced marriage, organ removal); the emergence of new locations in which to “source” potential victims i.e. Internally Displaced Persons & refugees camps and sites for stranded migrants; the creation of “new demands” (i.e. youth trafficked into forced service by armed groups); the erosion of the rule of law limiting victim access to justice; and the absence of protection mechanisms or immediate solutions. In short, a crisis creates the perfect environment for traffickers to access and control their victims.
Trafficking in Persons: South Sudan’s Context. **
South Sudan is a country of origin, transit and destination of TIP. It hosts a sizeable vulnerable population to trafficking in persons both for internal and across the borders. Trafficking is penalized under Human Trafficking Section 282 of the Penal Code. It states, “whoever procures, entices or leads away, even with his or her consent, any person for sale or immoral purposes to be carried outside Southern Sudan, commits an offence, and upon conviction, shall be sentenced to imprisonment for a term not exceeding seven years or with a fine or with both”. This definition does not commensurate to the standard definition set forth in the Article 3 (a) of the UN Palermo Protocol. This has further contributed to the lack of prosecution of TIP cases that may not fall under the definition of article 282, for example cases of forced labor will remain underreported. There is a greater risk in lack of identification of victims of trafficking which further undermine the efforts to protect them. TIP is an offense that is cross border in nature but can happen internally. In South Sudan this is overlooked. Other articles that may potentially be used to prosecute offenders remain ineffectively applied. Elements of TIP crime is generally misunderstood due to ambiguous definition of trafficking in persons. Immoral purposes are loosely defined as sexual-based crimes, highly presumed that it affects women and girls, putting other forms of exploitation to remain underreported. However, several potential elements of TiP crimes are prohibited across several legislative acts.
In the absence of comprehensive law on trafficking which encapsulates elements that are commensurate to Palermo protocol, there is a need to conduct legal analysis on current provisions across several legislative acts and provide interpretation of such provisions that can be used to prosecute elements of TIP crime, at the same time identify gaps from current provisions to inform law makers for the drafting of comprehensive law on TIP. This exercise will provide South Sudanese government evidence for improved legislative response on combating Trafficking in Persons.
The legal analysis will apply a combination of literature reviews of national, international and regional documents that sanction indicators related to TIP and qualitative analysis through semi-structured individual and group interviews, and focus groups with key informants on current criminal justice responses looking at how criminal justice agents apply provisions in prosecuting TIP crimes and its related crimes.
3. Nature of Consultancy and its Contribution to IOM’s Project Delivery**
Established in 1951, IOM is the leading inter-governmental organization in the field of migration and works closely with governmental, intergovernmental and non-governmental partners. IOM is dedicated to promoting humane and orderly migration for the benefit of all. It does so by providing services and advice to governments and migrants. The project to which the consultancy is contributing is aimed at preventing, reducing and mitigating serious protection threats for vulnerable populations who have been severely affected by the ongoing crisis, and by the recent outbreak of COVID-19 in South Sudan through the provision of multi-sector life-saving humanitarian assistance. Trafficking in persons is considered a serious threat to the vulnerable populations. Through this project, IOM will strengthen the capacity of criminal justice actors and first responders, with attention to advocating for the protection of victims. It has four main components; 1) conduct legal analysis of the relevant articles of the relevant laws (i.e. penal code) that may be used to prosecute elements of TIP and smuggling of migrants (SOM); 2) strengthen the national task force on trafficking and smuggling of migrants through facilitation of working group discussions throughout the course of the project, 3) develop Guidelines for criminal justice actors based on the result of the legal analysis. This Guidelines will be used by criminal justice agencies nation-wide and it will include relevant victim-centred guiding principles to ensure criminal justice actors and first responders use protection measures. The guidelines will include screening interview tools for first responders to identify TIP cases, 4) a set of information, education, and communication (IEC) materials will be developed to supplement the Guidelines.
4. Tasks to be Performed Contributing to The Project**
Under the overall supervision of the IOM Chief of Mission and direct supervision of the Migration Management Program Coordinator and in cooperation with co-chairs of the Technical taskforce on Trafficking, the Legal Analysis consultant will:
- Conduct a legal analysis of South Sudan’s Legal Frameworks including regulations and standing orders that punish or criminalize elements related to Trafficking in Persons including regional and international protocols ratified by Republic of South Sudan.
- Review current procedures of prosecution of traffickers and identification of victims, this includes analyzing the current referral mechanism, standard operating procedures such as Standard Operating Procedures for Child in the armed forces demobilization, and on Sexual Based Violence.
- Organize working group meetings with relevant stakeholders to discuss provisions of relevant laws and draw interpretations of such provisions. This includes discussing the current institutional arrangements in place, if any, in regards to perpetrators and the profits generated from trafficking as a basis of mechanism of compensation & restitution
- Share legal analysis report with members of the taskforce for validation as a basis for comprehensive law on Counter trafficking and Smuggling in the Republic of South Sudan
- Compile a compendium of existing legislations and policies relevant to trafficking in persons in South Sudan;
- Build up a comprehensive set of reference materials for future use by the Technical Taskforce on Trafficking;
- Provide support to international consultant to be recruited by IOM to develop proposals on drafting Comprehensive Bill on Counter-trafficking and Smuggling of Persons response in the Republic of South Sudan
- Organize and facilitate a stakeholder’s workshop to deliberate on the recommendations and action plan; and document and make revisions as will be deemed necessary
5. Tangible and measurable output of the work assignment
Legal analysis Proposal
Legal Gap Analysis on Trafficking in South Sudan which includes Compendium list of existing legislation and policies relevant to trafficking of persons in South Sudan, and list of resource/set of reference materials for future reference by the technical taskforce including literatures on trafficking topics, best practices in trafficking policy development and implementation plan, etc.
Month 2 – 3
Submission of Cabinet Submission Containing Recommendations on Draft bill on counter-trafficking and smuggling of persons;
6. Desirable Qualifications:
- Masters’ degree in Law or Bachelor Degree with minimum 10 years of law practice combined with relevant training and experience in policy development;
- At least five years work experience in trafficking and/or related fields of policy review and development, including possibly the protection and care for victims;
- Knowledge of trafficking and migration issues in the region an added advantage;
- Ability to work independently with minimum supervision as well as work well as part of a team;
- Excellent operational, organizational and communication skills and the ability to work harmoniously with other colleagues from diverse backgrounds;
- Strong computer skills, specifically hands-on experience in usage of MS Office;
- IOM functional competencies required: Effective communicator, successful negotiator, active learner, team player, and cross-cultural facilitator
- Consultants can apply as individuals or legally registered institutions
7. Timeline **
The estimated start date is 10th July for duration of 3 months based on submission and achievement of deliverables.
How to apply
Submit well written cover letter and CV including daytime telephone and e-mail address to: – International Organization for Migration (IOM) via e-mail to email@example.com indicating in the subject of the e‐mail “ Legal Analysis of South Sudan’s Legal Frameworks that punish or criminalize elements of crime related to Trafficking in Persons in South Sudan”
CLOSING DATE: 30th June 2020**
Only short listed applicants will be contacted
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