Malawians remanded in custody for �human trafficking
Lebogang Mosikare | Friday December 15, 2017 18:14
The State alleges that John Mayodi, Enock Nkatha and Gaston Kamanga on July 11, 2016 at Kazungula village, acting together with a common purpose and with intention to deceive and exploit, unlawfully recruited and transported one Sakina Estoni, Mary Mhone, Malise Biston, Graig Kapota and Tomasi Chirwa from Malawi with intention to traffic them to South Africa. When the accused appeared before Justice Bashi Moesi on Thursday for hearing, Morris Ndawana, the accused’s attorney, said that they have amply demonstrated in their heads of argument that the accused have no case to answer.
“We have clearly shown why the court should return a verdict of not guilty against the accused. We will now like to address the court on the prosecution’s response on specific issues. The court should not lose sight that the most important issue for determination when people are ferried from one point to another is exploitation. “The respondent suggests that this court is at liberty to convict the accused of any other offence besides the current charges. We agree with that but our position is that there is no reason to convict the accused of any other crime,” Ndawana said.
In fact it is clear, Ndawana buttressed, as demonstrated by what the prosecution said with regard to convicting the accused that the prosecution is saying that the court should embark on a fishing expedition to convict the accused.
He added: “They have not brought or mentioned any offence that the accused should be charged with. The accused argue that the material element of the offence has not been proved on a prima facie basis. There are contradictions from the state. We implore the court to return a verdict of not guilty against the accused”.
The assistant Director of Public Prosecutions, Priscilla Israel from the Directorate of Public Prosecutions (DPP) said the offence of trafficking in persons may include different acts and many different actors.
“When you speak of promotion of trafficking in persons, there is need to look at the elements of the offence like transportation, transfer and harbouring or receiving the trafficked. You have to show if deception, threat, vulnerability and other factors were used. There is no need to prove exploitation. If you prove that there is a likelihood of persons being exploited, it is sufficient,” Israel said.
Israel stated that smuggling in persons is another offence that can be committed during the course of trafficking in persons just like other associated ills like rape, prostitution and entering countries through ungazetted points of entry. The trafficked, Israel added, were being taken to Durban and Cape Town in South Africa to see their husbands and seek employment, but did not have proper travellers' documents.
“Since the victims did not have passports, the question then is how were they going to reach their destinations? The victims were totally under control of the accused.
From the evidence we have noted that they were escorted by the accused. One of the victims was aided and abetted by the accused to cross the border illegally using a passport that does not belong to him until he was arrested in Botswana. This is one underlying act of trafficking in persons,” Israel said.
There was a likelihood, Israel added, of the victims being exploited because they did not have proper travelling documents to stay in Botswana.
“The accused put the victims in a vulnerable state hence the relevant Act calls that ‘promoting trafficking’. The accused's attorney have said that we have not provided any offence to charge the accused, but there are a number of offences that the accused can be charged with like the Immigration Act,” Israel said.
In response to what Israel said, Ndawana said they would not be swayed by the speculation that was said by the prosecution.
“What the prosecution is trying to tell is all speculative. They are making inference without providing any factual basis to support their allegations. The prosecution cannot base its case on the opinions of the investigating officer. All that the investigating officer was saying was speculative,” Ndawana said.
He added that the accused were simply following the orders of the accused’s relatives in South Africa to bring the accused there, which cannot be equated with people who had the real intention of trafficking in persons. Justice Moesi further remanded the accused and will deliver ruling on March 23, 2018.