2017 Trafficking in Persons Report - Lesotho

LESOTHO: TIER 2

The Government of Lesotho does not fully meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government demonstrated increasing efforts compared to the previous reporting period; therefore, Lesotho remained on Tier 2. The government demonstrated increasing efforts by formally implementing a MOU to support the re-establishment of the one NGO-run shelter that provided care for trafficking victims. The multi-sectoral committee met four times and the government conducted public awareness activities. However, the government did not meet the minimum standards in several key areas. The government did not convict any traffickers during the reporting period, as compared to the previous year when it convicted one. The government did not address the legal framework for addressing human trafficking, which include definitions that are inconsistent with the 2000 UN TIP Protocol and penalties that are not sufficiently stringent to deter the crime. Furthermore, the 2011 Anti-Trafficking in Persons Act required the use of deception, threat, force, or other means of coercion for a child to be considered a trafficking victim, which is inconsistent with international law. The government identified and referred fewer potential victims of trafficking. For the majority of the reporting period, the NGO-run shelter providing care was closed due to a lack of victim referrals.

RECOMMENDATIONS FOR LESOTHO

Address jurisdictional issues impeding the adjudication of trafficking cases and increase efforts to investigate and prosecute trafficking crimes, including complicit officials; provide financial support for the Victims of Trafficking Trust Fund and implement procedures for administering the funds; finalize and implement guidelines for proactive victim identification and standard operating procedures (SOPs) for referring identified victims to care, in line with the anti-trafficking act regulations; allocate funding to support operation of the multi-agency anti-trafficking taskforce; expand efforts to provide trafficking-specific training to investigators, prosecutors, judges, and social service personnel; continue to work with NGOs to ensure the availability of a suitable facility for the care of victims of trafficking; amend the anti-trafficking and child welfare laws so that force, fraud, or coercion are not required for cases involving children younger than age 18 to be considered trafficking crimes and penalties for trafficking crimes are sufficiently stringent to deter potential traffickers; provide anti-trafficking training to diplomatic personnel; increase efforts to systematically collect and analyze anti-trafficking law enforcement and victim protection data; and increase oversight of labor recruitment agencies licensed in Lesotho.

PROSECUTION

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.

PROTECTION

The government made inadequate efforts to protect victims. It identified fewer potential victims of human trafficking and did not allocate funding for the Victims of Trafficking Trust Fund; however, it provided financial support to a crisis care shelter for protective services for female victims of trafficking. The Child and Gender Protection Unit (CGPU) within the Lesotho Mounted Police Service (LMPS) identified nine potential trafficking victims, compared with 18 the previous reporting period. CGPU referred one potential victim to an NGO that provided counseling and assistance to trafficking victims, compared with six referrals during the previous period. The government continued to rely on NGOs to assist victims, and formally began the implementation of an MOU signed during the previous reporting period, to support the re-establishment of the one NGO-run shelter that provided care for trafficking victims; the government provided financial support, including back rent and utilities. Nonetheless, for the majority of the reporting period, the NGO shelter providing care was closed due to a lack of victim referrals. The government made limited efforts to provide protective services for the period during which the shelter was closed. The Multi-Sectoral Committee on Combating Trafficking in Persons (MSC) drafted SOPs and a national referral mechanism and circulated them for input from relevant ministries. Government hospitals and clinics offered free medical, psychological, legal, and life skills services to victims of crime, including trafficking and at least one victim accessed such services during the year. The anti-trafficking act and its implementing regulations prohibit the prosecution of victims for unlawful acts committed as a direct result of being subjected to trafficking, provide foreign victims with permanent residency as a legal alternative to their removal, and encourage victims to assist in the investigation of traffickers; however, it was unclear whether the government implemented these provisions.

PREVENTION

The government maintained its efforts to prevent trafficking through public awareness activities and measures to protect Basotho workers in South Africa. The multi-sectoral committee met four times, and its member ministries conducted public awareness activities, including radio spots, public rallies, a walk, posting and distribution of printed material in public areas, presentations for high school students, and outreach at border posts.

During the reporting period, the Ministry of Labor and Employment conducted approximately 1,773 inspections of formal sector work sites; however, it did not inspect informal work settings, where forced labor is more prevalent. The number of labor inspectors decreased by six, from 38 to 32; labor inspectors did not identify any child labor violations in 2016. In 2016, the government implemented an agreement signed during the previous reporting period with the Government of South Africa that increased protections for Basotho workers, including domestic workers, employed in South Africa, by authorizing the issuance of long-term work permits, requiring signed employment contracts, and allowing Basotho to register for unemployment insurance in South Africa. The government made no efforts to reduce the demand for commercial sex or forced labor. The regulations for the anti-trafficking act directed the Ministry of Foreign Affairs to provide anti-trafficking training to diplomatic personnel, but it did not conduct such training during the reporting period.

TRAFFICKING PROFILE

As reported over the past five years, Lesotho is a source, transit, and destination country for women and children subjected to forced labor and sex trafficking, and for men subjected to forced labor. In Lesotho, Basotho children are subjected to domestic servitude and forced labor in animal herding; children, especially orphans who migrate to urban areas, increasingly are subjected to sex trafficking. Basotho women and girls seeking work in domestic service voluntarily migrate to South Africa, where some are detained in prison-like conditions or exploited in sex trafficking. Some Basotho men who migrate voluntarily, although illegally and often without identity documents, to South Africa for work in agriculture and mining become victims of forced labor; many work for weeks or months before their employers turn them over to South African authorities for deportation on immigration violations to avoid paying them. Basotho are also coerced into committing crimes in South Africa, including theft, drug dealing, and smuggling under threat of violence or through forced drug use. Foreign nationals, including Chinese, subject their compatriots to sex trafficking in Lesotho.