Introduction
The fight against human trafficking and smuggling is a global imperative, and Ethiopia has reinforced its commitment through the enactment of Proclamation No. 1178/2020 on the Prevention and Suppression of Trafficking in Persons and Smuggling of Persons. Issued on April 1, 2020, this Proclamation represents a significant legislative update, repealing the earlier Proclamation No. 909/2015 and introducing crucial amendments to specific articles of the Ethiopian Criminal Code. This chapter will delve into the core tenets of this comprehensive law, exploring its foundational purpose, key definitions, criminal offenses and associated penalties, provisions for asset recovery, robust victim protection measures, and the institutional frameworks established for effective implementation and international cooperation.
I. Core Purpose and Legal Framework
The primary objective of Proclamation No. 1178/2020 is unequivocally to prevent and suppress the abhorrent crimes of trafficking in persons and smuggling of persons, both within Ethiopia’s borders and originating from its territory. This legal reinforcement underscores Ethiopia’s dedication to upholding human rights and fulfilling its international obligations.
The Proclamation firmly anchors its legislative authority in both national and international legal instruments, stating:
“WHEREAS, in accordance with Article 18 of the Constitution of the Federal Democratic Republic of Ethiopia prohibits trafficking in human in any manner; as well as Ethiopia, have ratified the protocol to Prevent, Suppress and Punish… Trafficking in Persons and Smuggling of Persons Proclamation No. 1178/2020.”
This preamble highlights two critical pillars supporting the Proclamation:
- Constitutional Mandate: Article 18 of the Federal Democratic Republic of Ethiopia’s Constitution serves as a foundational prohibition against any form of human trafficking, providing a strong domestic legal basis.
- International Commitments: Ethiopia’s ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol), alongside the Protocol against the Smuggling of Migrants by Land, Sea and Air, underscores its adherence to global anti-trafficking and anti-smuggling efforts. The Proclamation thus serves as the domestic legal mechanism to implement these international instruments effectively.
II. Definitions of Key Terms (Article 2)
To ensure clarity, consistency, and precision in its application, the Proclamation provides comprehensive definitions for several critical terms:
- “Trafficking in Persons”: This broad definition captures the essence of exploitation, encompassing acts committed with the purpose of exploitation, specifically including:
- Slavery or practices similar to slavery, servitude, or debt bondage.
- Exploitation in organ removal, prostitution, or other forms of sexual activities.
- Engaging another person in forced labor or service, begging, or criminal acts.
- Forced marriage or surrogacy.
- Exploiting children in labor.
- Any other exploitation similar to these acts.
- “Child”: Defined unequivocally as “any person under the age of 18 years,” aligning with international standards for child protection.
- “Smuggling”: Refers to enabling a person to illegally enter into, exit from, or transit through the territory of Ethiopia, or to cause the exit of another person from Ethiopian territory, for financial or material gain. This includes preparatory acts, being found in the process of, transport, or receipt related to such illegal movement.
- “Victim”: A broad definition that extends beyond direct harm to include “any person who is directly harmed by the crimes stipulated by this Proclamation, including those who are suspected to be a victim, or who claim to be a victim, or who are found in a situation that is susceptible to being a victim of crime provided under this Proclamation.” This inclusive definition is crucial for early intervention and support.
- “Region”: For the purpose of this Proclamation, “Region” includes “Addis Ababa and Dire Dawa City Administration” in addition to the states referred to under Article 47(1) of the Constitution, ensuring its applicability across all administrative divisions.
- “Criminal Code”: Specifically refers to “the Criminal Code of the Federal Democratic Republic of Ethiopia 2004 promulgated with Proclamation No. 414/2004,” ensuring legal coherence with existing criminal legislation.
- “Police”: Can refer to either the Federal Police or Regional State Police “to whom the power of Federal Police is delegated,” allowing for flexibility in enforcement across different administrative levels.
III. Criminal Offences and Punishments
The Proclamation meticulously details various criminal acts related to trafficking and smuggling, outlining corresponding punishments that are graded based on the severity of the act and the presence of aggravating circumstances.
A. Trafficking in Persons (Section One)
- Act of Trafficking (Article 3): Any person who commits acts defined as trafficking is subject to a punishment of Seven years to Fifteen years of rigorous imprisonment and a fine ranging from Twenty Thousand to One Hundred Thousand Birr.
- Aggravating Circumstances (Article 4): The penalties are significantly increased if the crime is committed under specific conditions:
- Against a child, a mentally ill person, or a physically disabled person.
- By using drugs, medicine, or weapons.
- By a public official or civil servant abusing their entrusted powers.
- By an organization licensed to conduct domestic or foreign employment services, abusing its license.
- Resulting in “grave bodily injury or chronic disease or permanent mental disorder on the victim.”
- Committed by “an organized criminal group.”
- If the “life or safety of the victim” is endangered or they are subjected to “inhuman treatment.”
- In the most severe cases, if the victim’s death results, the punishment can be rigorous imprisonment from Fifteen years to Twenty-Five years or life imprisonment or death, accompanied by a fine from Fifty Thousand to Two Hundred Thousand Birr.
- Assisting Trafficking (Article 5): Providing assistance to the act of human trafficking is also criminalized, with varying prison sentences and fines, reflecting the broad scope of criminal liability for those who facilitate these crimes.
- Presumption of Exploitation (Article 6): The Proclamation allows for a presumption of exploitation based on circumstantial evidence. This presumption can be made if a person recruits, transports, transfers, harbors, hides, or receives another person using specified coercive or deceptive means, or commits such acts against a child without necessarily using such means, easing the burden of proof in challenging cases.
B. Smuggling of Persons (Section Two)
- Smuggling (Article 8): Illegally enabling someone to enter, exit, or transit Ethiopia for financial or material gain is punishable by rigorous imprisonment from Five years to Ten years and a fine from Ten Thousand to One Hundred Thousand Birr.
- Aggravating Circumstances (Article 9): Similar to trafficking, smuggling offenses incur higher penalties under specific aggravating circumstances, including crimes against vulnerable persons, use of weapons, abuse of public office, or abuse of an employment agency’s license. The most severe consequence, resulting in the victim’s death, carries a punishment of rigorous imprisonment from Fifteen years to Twenty-Five years or life imprisonment or death, accompanied by a fine from Fifty Thousand to Two Hundred Thousand Birr.
- Assisting Illegal Stay (Article 9): Specifically criminalizes assisting a foreigner to stay illegally in Ethiopia, addressing a common component of smuggling networks.
- Documents Used to Smuggle (Article 10): Preparing, possessing, providing, or transferring forged or falsified travel documents for the purpose of smuggling is also a distinct criminal offense, targeting the instrumental elements of these operations.
C. Unlawful Sending of Persons Abroad for Work (Section Three)
- Unlawful Sending (Article 11): This section targets illegal practices in labor migration. Sending someone abroad for work without a valid license, or with a suspended/cancelled license, or to a prohibited country, is punishable by rigorous imprisonment from Seven years to Twelve years and a fine from Twenty Thousand to One Hundred Thousand Birr.
- Aggravating Circumstances (Article 12): Higher penalties apply if the unlawful sending is committed under the pretext of false visas (e.g., visit, medical, educational visas used for employment) or if an employment services provider abuses their license.
IV. Asset Recovery and Property Management
The Proclamation includes robust provisions aimed at disrupting the financial gains of traffickers and smugglers, allowing for the management and forfeiture of properties associated with these crimes.
- Concealing Property (Article 17): Deliberately concealing, damaging, or disguising property associated with crimes under this Proclamation to prevent its forfeiture is itself a punishable offense.
- Forfeiture (Article 18): Courts are empowered to order the forfeiture of properties that are instrumental to or proceeds of these crimes, with fines proportional to the crime’s severity, ranging from Ten Thousand Birr to Twenty-Five Million Birr. The court can also order the dissolution of organizations involved in such crimes or the confiscation of their properties.
- Freezing and Seizure (Article 19 & 20):
- “Freezing”: Defined as a “prohibition on the transfer, conversion, disposition or movement of property by a court order for given duration.” Police and prosecutors can apply to the court for such orders.
- “Seizure”: Defined as the “administration of frozen property by administrator appointed and supervised by a court.”
- In urgent situations, a temporary freezing order can be issued by the head of the relevant prosecution office for up to 72 hours, but this must subsequently be presented to the court for review and approval.
- Confiscation (Article 21): The court has jurisdiction to order the final confiscation of property if it is determined to be “instrumental for the crime” or constitutes “proceeds of the crime,” ensuring that illicit gains are permanently removed from criminal networks.
V. Victim Protection and Assistance
A significant and commendable aspect of this Proclamation is its strong emphasis on the rights and comprehensive support for victims of trafficking and smuggling.
- Victim Protection (Article 26): Victims are accorded fundamental rights to protection, including:
- “Legal and psychological counseling and support, temporary shelter, and other similar services.”
- The “right to information on the nature of protection and support to be accorded, and status of the case during investigation and prosecution.”
- Crucially, victims “shall not be placed in a police station, detention center or prison facility under any circumstances,” ensuring they are treated as victims, not criminals.
- Repatriation and Rehabilitation (Article 26): Victims have the right to be repatriated to their place of origin and may receive economic empowerment rehabilitation services, including temporary residence permits, to facilitate their reintegration into society.
- Compensation (Article 28): Victims have the right to claim compensation for “damages incurred, money paid by the victim to the perpetrator, income gained by the act or income lost or future lose by the victim due to the offence committed.” The court can order such compensation, and if the accused is unable to pay, the compensation may be covered by the newly established “Victim Protection and Rehabilitation Fund.”
VI. Institutional Roles and Cooperation
The Proclamation establishes a robust framework for national coordination and international cooperation to effectively combat these transnational crimes.
- Victim Protection and Rehabilitation Fund (Article 29-32): A dedicated fund is established to cover the costs of “medical, psychological, social and legal counseling and support,” temporary shelter, economic empowerment programs, and repatriation services for victims. The fund is financed through government budget allocations, donations, and critically, “money collected from confiscation or forfeiture of properties or fine” derived from these crimes.
- National Council (Article 33-34): A high-level national council is established to “coordinate the prevention and control of the crimes of trafficking in persons, smuggling of persons and unlawful sending of person abroad for work.” Its broad responsibilities include monitoring law enforcement, ensuring victim protection, and facilitating information exchange and international cooperation. The Council’s composition reflects a multi-sectoral approach, including representatives from various government bodies, the National Bank, Civil Societies Agency, Religious Institutions, and other relevant entities.
- National Partnership Coalition (Article 35-36): This coalition is designed to undertake research, prepare policies and strategies, and assist in prevention, control, and victim protection efforts, fostering collaboration between governmental and non-governmental stakeholders.
- Government Bodies’ Responsibilities (Article 37-41):
- Federal Police, Prosecutors, and Judges (Article 38): Bear primary responsibility for crime prevention, investigation, evidence scrutiny, and related judicial matters, forming the backbone of the criminal justice response.
- Ministry of Foreign Affairs (Article 39): Plays a crucial role in organizing and disseminating data on victims abroad, facilitating diplomatic protection, and working with foreign governments for victim repatriation.
- Federal Police (Article 40): Specifically tasked with “information exchange, mutual cooperation and sign a cooperation framework agreement with foreign police to prevent and control the crimes” and bringing suspects to justice, emphasizing cross-border law enforcement collaboration.
- Federal Attorney General (Article 42): Acts as the central authority for international legal cooperation, based on reciprocity, existing agreements, and the Ethiopian legal system, facilitating extradition and mutual legal assistance.
VII. Repealed Laws (Article 45)
To avoid ambiguity and ensure legislative clarity, the Proclamation explicitly repeals:
- “The Prevention and Suppression of Trafficking in Persons and Smuggling of Migrants Proclamation No. 909/2015.”
- Specific articles of the Criminal Code (Proclamation No. 414/2004), namely: Article 243 (2) and (3), Articles 596 to 599, and Articles 634 to 638. This indicates a consolidation of these specific offenses under the new, specialized Proclamation.