People Trafficking and People Smuggling (Prohibition) Act, 2009
Act 7 of 2009
- Commenced on 1 March 2010
- [This is the version of this document at 1 December 1998.]
Part I – Preliminary
1. Short title and commencementThis Act may be cited as the People Trafficking and People Smuggling (Prohibition) Act, 2009, and shall come into force on a date to be appointed by the Minister by notice in the Gazette, and the Minister may appoint different dates for the coming into operation of different provisions of this Act.
2. InterpretationIn this Act, unless the context otherwise requires—“amount of loss” includes—(a)costs of medical, physical, psychological or psychiatric treatment required by the trafficked person;(b)costs of physical and occupational therapy or rehabilitation required by the victim;(c)costs of necessary transportation, temporary childcare, temporary housing or the movement of the trafficked person to a place of temporary safe residence; and(d)lost income and due wages according to law regulating wages;“child” means a person who is under the age of eighteen years;“coercion” means—(a)threat of serious harm to or physical restraint against a person:(b)any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against the person or any other person; or(c)the abuse or threatened abuse of the legal process;“conveyance” means any vehicle, vessel, ship, aircraft, or any other mode of transport whether by air, sea or land;“customs officer” has the same meaning assigned to it by the Customs and Excise Act No. 21 of 1971;“enforcement officer” means any officer specified in section 26;“exploitation” includes all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of human organs;“financial or other material benefit” includes any type of financial or non-financial inducement, payment, bribe, reward, advantage or service;“fraudulent travel or identity document” means a travel or identity document that—(a)has been made, or altered in a material way, by a person other than a person or agency lawfully authorised to make or issue the travel or identity document on behalf of a country;(b)has been issued or obtained through misrepresentation, corruption or duress or in any other unlawful manner; or(c)is being improperly used by a person other than the rightful holder;“illegal entry” means crossing the border of Swaziland, or any other country, without complying with the requirements for lawful entry;“immigration officer” has the same meaning assigned to it by the Immigration Act No. 5 of 1982;“maintains” means in relation to labour services, to secure continued performance regardless of initial agreement on the part of the trafficked person to perform such type of service;“medical officer” means a registered medical practitioner in the service of the Government;“Minister” means the Minister charged with the responsibility for internal security;“people smuggling” means arranging or assisting a person's illegal entry into any country of which the person is not a citizen or permanent resident, including Swaziland, either knowing or being reckless as to the fact that the person's entry is illegal, in order to obtain a financial or other material benefit;“people trafficking” means the recruiting, transporting, transferring, harbouring, providing or receiving of a person for the purpose of exploitation;“permanent resident” has the same meaning assigned to it by the Immigration Act No. 5 of 1982;“premises” means a house, building, factory, land, tenement of any tenure, whether open or enclosed, whether built or not, whether private or public and whether maintained or not under any authority and includes any container;“prescribed” means prescribed by the Minister by regulations;“protection officer” means any officer appointed under section 42;“protection order” means an order made by a magistrate for the care and protection of a trafficked or smuggled person;“receiving country” means any country into which—(a)a trafficked person is brought as part of an act of trafficking in persons; or(b)a smuggled person's entry is arranged;“slavery” includes a situation where a person is compelled to work through force or coercion or inducement or fraud without pay or pay below subsistence;“smuggled person” means any person who is a victim or object of an act of people smuggling, regardless of whether that person participated in the people smuggling;“social worker” means any social worker in the Ministry or Department responsible for welfare services and includes any assistant social worker;“Task Force” means the Task Force for the Prevention of People Trafficking and People Smuggling established under section 6;“trafficked person” means any person who is the victim or object of an act of people trafficking.
3. Scope of applicationThis Act applies, regardless of whether the conduct constituting the offence took place inside or outside Swaziland, in the following circumstances—
4. Extension of Act to extra territorial offencesAny offence under this Act committed—
5. Prevailing law
Part II – The Task Force for the Prevention of People Trafficking and People Smuggling
6. The Task Force for the Prevention of People Trafficking and People Smuggling
7. Functions and powers of the Task Force
8. Power of Minister to issue directivesThe Minister may, from time to time, give the Task Force directives not inconsistent with this Act as to the performance of the functions and powers of the Task Force and the Task Force shall give effect to such directions.
9. Meetings of the Task Force
10. Establishment of committees
11. Secretary of the Task Force and other officersThe Minister shall designate a public officer to be the Secretary of the Task Force and such other public officers as may be necessary to assist the Task Force.
Part III – People trafficking offences
12. Offence of people trafficking
13. Offence of trafficking in childrenA person, “recruits, transport, transfers, harbours, obtains, receives, employs, maintains, or holds any person or persons, knowing or in reckless disregard that the person is a child”, for the purpose of exploitation, commits an offence and is, on conviction, liable to a term of imprisonment not exceeding twenty-five (25) years.
14. Offence of profiting from exploitation of a trafficked personA person who profits from the exploitation of a trafficked person commits an offence and is, on conviction, liable to a term of imprisonment not exceeding fifteen (15) years and to a fine not exceeding eight hundred thousand emalangeni.
15. Offence to facilitate stay of a trafficked person
16. Consent of trafficked person irrelevantIn a prosecution for an offence under this Part, it shall not be a defence that the trafficked person consented to the act of people trafficking or to the exploitation.
17. Past sexual behaviour irrelevantA trafficked person's past sexual behaviour is irrelevant and inadmissible for the purpose of proving that the trafficked person was engaged in other sexual behaviour or to prove the trafficked person's sexual predisposition.
18. Fraudulent travel or identity documents
Part IV – People smuggling offences
19. Offence of people smugglingA person who arranges or assists a person's illegal entry into any country of which the person is not a citizen or permanent resident, including Swaziland, either knowing or being reckless as to the fact that the person's entry is illegal, in order to obtain a financial or other material benefit commits the offence of people smuggling and is liable on conviction to a term of imprisonment not exceeding eighteen (18) years.
20. Aggravated people smuggling offencesA person who intentionally engages in people smuggling under one or more the following circumstances—
21. Offence of children smugglingA person, who smuggles children, for the purpose of exploitation, commits an offence and is, on conviction, liable to a term of imprisonment not exceeding twenty (20) years.
22. Offence of profiting from exploitation of a smuggled personA person who profits from the exploitation of a smuggled person commits an offence and is, on conviction, liable to a term of imprisonment not exceeding fifteen (15) years or to a fine of five hundred thousand emalangeni or to both.
23. Offence to facilitate stay of a smuggled person
24. Consent of smuggled person irrelevantIn a prosecution for an offence under this Part, it shall not be a defence that the smuggled person consented to the act of people smuggling or to the exploitation.
25. Fraudulent travel or identity documents
Part V – Enforcement
26. Enforcement officers
27. Power of investigationAn enforcement officer shall have all the powers necessary to carry out an investigation for any offence under this Act.
28. Power of arrest
29. Search and seizure with warrant
30. Search and seizure without warrant
31. Access to computerised data
32. List of things seized
33. Power to examine persons
34. Admissibility of statement
35. Forfeiture of conveyance, moveable property, etc.
36. Cost of holding conveyance, moveable property, etc., seizedWhere any conveyance, moveable property, record, report or document or human organ seized under this Act is held in the custody of the enforcement officer pending completion of any proceedings in respect of an offence under this Act, the cost of holding such conveyance, moveable property, record, report or document or any human organ in custody shall, in the event of any person being found guilty of an offence, be a civil debt due to the Government by such person and shall be recoverable accordingly.
37. No costs or damages arising from entry, search or seizure to be recoverableNo person shall, in respect of any entry or search, or seizure of any conveyance, moveable property, record, report or document or any human organ seized in the exercise of any power conferred by this Act, be entitled to the costs of such entry, search, or seizure or to any damages or other relief unless such entry, search or seizure was made without reasonable cause.
38. ObstructionAny person who obstructs, impedes, interferes or fails to comply with any lawful demand of an enforcement officer in the performance of his functions under this Act commits an offence.
40. Institution of prosecutionNo prosecution for an offence under this Act shall be instituted except by or with the written consent of the Director of Public Prosecution.
Part VI – Care and protection of trafficked and smuggled persons
41. Place of refuge
42. Designation of protection officers
43. Taking a person into temporary custody
44. Person in temporary custody in need of medical examination or treatment
45. Medical examination and treatmentA medical officer before whom a trafficked or smuggled person is presented under section 43—
46. Authorisation for hospitalisationWhere a trafficked or smuggled person taken into temporary custody under section 43(1) is a child and the medical officer who examines him is of the opinion that his hospitalisation is necessary for the purpose of medical care or treatment, an enforcement officer may authorise that person to be hospitalised.
47. Control over hospitalised personWhere the trafficked or smuggled person taken into temporary custody under section 43(1) is hospitalised, the enforcement officer shall have control over, and responsibility for, the security and protection of that person.
48. Steps to be taken after medical examination or treatment
49. No liability incurred for giving authorisation
50. Investigation, enquiry and protection order
51. Recording of evidence of trafficked or smuggled person
52. Application by parent, guardian or relative
53. Release of trafficked or smuggled person
54. Trafficked or smuggled person who escapes or is removed from place of refugeA trafficked or smuggled person who escapes or is removed from a place of refuge without lawful authority—
55. Offence of removing or helping a trafficked or smuggled person to escape from place of refugeAny person who—
56. Power of Minister to remove trafficked or smuggled person from one place of refuge to anotherThe Minister may, at any time, for reasons which appear to him to be sufficient, by order in writing direct the removal of any trafficked or smuggled person from a place of refuge to any other place of refuge as may be specified in the order.
Part VII – Miscellaneous
57. Recruiting personsA person who knowingly recruits, or agrees to recruit, another person to participate in the commission of an act of people trafficking or people smuggling, commits an offence and is, on conviction, liable to a term of imprisonment not exceeding ten (10) years or to a fine of twenty thousand emalangeni or to both.
58. Providing facilities in support of people trafficking or people smugglingA person being—
59. Providing services for purposes of people trafficking or people smuggling
60. Harbouring persons
61. Obligation of owner, operator or master of conveyance
62. Intentional omission to give informationAny person who knowing or having reason to believe, that any offence under this Act has been or will be committed, intentionally omits to give any information respecting that offence, commits an offence and is, on conviction, liable to a term of imprisonment not exceeding five (5) years or a fine not exceeding two hundred and fifty thousand emalangeni or to both.
63. Immunity from criminal prosecutionA trafficked or smuggled person shall not be liable to criminal prosecution in respect of—
64. Protection of informers
65. Participation in a people trafficking or people smuggling offence
66. Attempt to commit a people trafficking or people smuggling offenceAny person who attempts to commit an offence under this Act is guilty of attempting to commit that offence and may be punished as if the offence attempted had been committed, provided that the person's conduct is more than merely preparatory to the commission of the offence.
67. Restriction on media reporting and publication
68. Evidence of agent provocateur admissible
69. Admissibility of documentary evidenceWhere any enforcement officer has obtained any document or other evidence in exercise of his powers under this Act, such document or copy of the document or other evidence, as the case may be, shall be admissible in evidence in any proceedings under this Act, notwithstanding anything to the contrary in any written laws.
70. Admissibility of translation of documents
71. IndemnityNo action, suit, prosecution or other proceedings shall lie or be brought, instituted or maintained in any court or before any other authority against—
72. General penaltyAny person who commits an offence under this Act for which no penalty is expressly provided shall, on conviction, be liable to a term of imprisonment not exceeding seven (7) years or to a fine not exceeding fifty thousand emalangeni or to both.
73. Offence by body corporateWhere any offence against any provision of this Act has been committed by a body corporate, any person who, at the time of the commission of the offence was a director, manager, secretary or other similar officer of the body corporate, or was purporting to act in any such capacity, or was in any manner responsible for the management of any of the affairs of such body corporate, or was assisting in such management, shall also be liable for that offence unless he proves that the offence was committed without his knowledge, consent or connivance, and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his functions in that capacity and to all the circumstances.
74. Offence by employee or agentWhere any person would be liable under this Act to any punishment or penalty for any act, omission, neglect or default, such person shall be liable to the same punishment or penalty for every such act, omission, neglect or default of any employee or agent of his or of the employee of such agent, if such act, omission, neglect or default was committed by the person's employee in the course of his employment, or by the agent when acting on behalf of the person, or by the employee of such agent in the course of his employment by such agent, or otherwise on behalf of the agent.
75. Money laundering, extradition and mutual assistanceThe offences set out in this Act are—
History of this document
01 March 2010
01 December 1998 this version