Gaps in laws and their enforcement expose trafficking victims to a well organised criminal market.
Kenya exports its labour mainly to the Middle East, and to a lesser extent to Europe, North America and Africa. For many Kenyans however, this means a life of slavery in Middle Eastern countries as traffickers exploit socio-economic vulnerabilities and gaps in the legal protection of migrant workers.
Kenya has many labour laws, but the relevant ones don’t refer directly to labour exportation, which means they can’t protect migrant workers. And although government ministries of labour, foreign affairs and interior, various other departments, councils and funding boards are involved in regulating labour exportation, a lack of coordination among them weakens enforcement. These gaps expose trafficking victims to a well organised criminal market.
A robust regulatory and implementation strategy with a single comprehensive foreign employment policy is needed to oversee labour exportation and stop the networks responsible for trafficking.
Kenya’s Counter-Trafficking in Persons Act says trafficking is when someone ‘transports, transfers, harbours or receives another person for the purpose of exploitation.’ The law defines exploitation as keeping a person in a state of slavery and forced labour with or without their consent. This act has been in force for almost 10 years and carries penalties of between five years to life in prison, but it hasn’t curbed the crime.
Human trafficking to the Middle East is either not recognised, or not prioritised by government
Kenya’s prosecution service reports that it currently handles 30 cases of human trafficking, none of which involve forced labour to Middle Eastern countries. This means that human trafficking to the Middle East is either not recognised, or not given priority by government.
Lucia Nekesa, recruited as a domestic worker to Qatar by a Kenyan employment agency, found herself in war-torn Iraq. She told of being abused and trafficked six times in 10 months before being rescued in September 2019 by the Kenyan government with the help of the International Organization for Migration and HAKI Africa. Mathias Shipeta, rapid response officer for HAKI Africa, says it’s rare for trafficking victims to be rescued and that Nekesa’s case was an exception.
In May 2019 the Institute for Security Study’s ENACT organised crime project surveyed workers who had been trafficked and families who still had relatives in Middle Eastern countries. The research, conducted in Kenya’s east, coastal and Nairobi regions, found that almost all the 60 workers interviewed were exploited at their workplace. This took the form of physical and verbal abuse, threats, denial of medical attention, long working hours, restricted movements and communication, sexual harassment, and poor living conditions.
Almost all had the terms of their employment contracts changed when they arrived at their destination country. This included salary cuts, change of job location, and longer working hours.
Foreign trafficking networks work with local organised crime groups disguised as employment agencies
After Kenya banned employment agencies from recruiting its citizens to work in foreign countries in September 2014, a multi-agency taskforce was set up to make recommendations on how to protect migrant workers and curb the activities of ‘briefcase employment agencies’.
The taskforce found that around 200 000 Kenyans were working in Middle Eastern countries. Of these, 130 000 were in Saudi Arabia and 22 000 in the United Arab Emirates, with the rest in Qatar, Oman, Bahrain, Jordan, Lebanon, Yemen and Iraq. Most of its 17 recommendations have been only partly implemented, or not at all. The taskforce didn’t advise on the investigation and sentencing of employment agencies trafficking Kenyans.
There’s also no guidance on dealing with workers trafficked before the ban and who are still being trafficked in foreign countries. The taskforce appeared to focus more on the mistreatment Kenyans face when they arrive in foreign countries rather than the process of getting there.
Despite government setting up a new registration process for employment agencies in 2017, trafficking still contributes to Kenya’s underground criminal economy. An ENACT survey of 20 employment agencies in Kenya revealed two categories of criminal actors driving this market.
Kenya has approached the problem mainly as a human rights concern rather than a criminal offence
First are foreign criminal networks involved in human trafficking under the guise of job recruitment. They are highly organised with a horizontal structure that ensures the various links in the value chain work separately, but in concert with local organised crime networks disguised as employment agencies.
Second are local criminal networks. Kenyan employment agencies, especially those that are unlicensed, are highly organised, with a vertical working structure that runs a clear line of command through the different groups. These entrepreneurs are based in Kenya and work with foreign employment agencies involved in trafficking.
By approaching the problem mainly as a human rights concern, Kenyan government efforts have diverted attention away from the criminal dimension. Reassessing the problem as one of human trafficking could help Kenya protect its workers abroad while also combating transnational crime.
Mohamed Daghar, Researcher, ENACT project, ISS Nairobi