On the 19th of February 2017, the Sesheke Police in Zambia learned of a group of children “speaking a strange language” nearby. This information led them to Justine Muftafela (“Appellant 3”), who led police to a lodge where 14 children were being housed under the care of Abswe Samuel Ikengelo (“Appellant 4”).
Appellant 4 informed the police that Nyasa Nicole Mulumbilwa (“Appellant 1”) and Hussie Salimo (“Appellant 2”) had travelled to Namibia in preparation for their intended relocation.
Authorities learned, based on interviews with the Appellants and the 14 children, that Appellants intended to smuggle the 14 children over the Namibian border. The 14 children did not know of these plans. Furthermore, authorities learned that all 14 children were related to either Appellant 1 or Appellant 4, and that Appellant 1 and Appellant 4 were husband and wife. Appellant 1 was the only party with valid travel documents. Appellant 1 admitted that Appellant 4 and the children entered Zambia illegally because they did not have passports.
Appellant 1 asserted that she had run with her children, nieces and nephews, from the conflict in the Democratic Republic of Congo (“DRC”) to a refugee camp in Sesheke. She stated that after arriving at the camp, she decided to cross into Namibia in an attempt to earn money for food by selling goods.
Appellant 2 stated that he met Appellant 1 on the border of Zambia and Namibia and decided to help her because she did not speak the local language. After his apprehension in Namibia, Appellant 2 denied knowing that Appellant 1 was associated with the children or the other Appellants.
Appellant 3 worked for bus operators stationed in Sesheke, and stated that Appellant 1 called him and asked him to help find lodging for Appellant 4 and the children. He paid for their lodging because they did not have money in the local currency. He further asserted that he planned to take them to the police after the children were fed.
Appellant 4 stated that he and his wife fled the DRC after his brother was killed, and that several of the children belonged to his brother. He stated that upon arrival in Sesheke, he and the children went to a lodge to eat and were apprehended by the police.
جمهورية الكونغو الديمقراطيةزامبيا
ناميبياSubordinate Court of the 1st Class
The Appellants were jointly charged with Trafficking in Persons under Zambian law. Each denied the charges and proceeded to trial.
As stated in the Fact Summary, the Appellants testified as follows:
- Appellant 1: Testified that she fled the war in the DRC with her children, nieces, and nephews. After reaching the refugee camp in Sesheke, she crossed into Namibia to sell goods for money. She admitted that the children and her husband had entered Zambia without proper documentation.
- Appellant 2: Testified that he met Appellant 1 on the Namibian border and assisted her with communication. He stated that he wasn’t aware she planned to traffic the children, or that she was associated with Appellant 3 and 4.
- Appellant 3: Testified that he was asked by Appellant 1 to assist Appellant 4 and the children in finding shelter, and that he paid for their lodging. He stated that he intended to bring Appellant 4 and the children to the police after they ate, but was apprehended before he could do so.
- Appellant 4: Testified that he and his wife fled from the DRC with their children, nieces, and nephews. When they arrived at the Sesheke refugee camp, they went to a lodge to eat where they were apprehended by the police. He stated that he planned to surrender himself to the police, and denied trafficking the children.
Owen Limpos Silumesi, an immigration officer, testified that the Appellants admitted to him that they were attempting to smuggle the children into Namibia.
The trial magistrate found the appellants’ testimony was contradictory regarding the reason for Appellants 1 and 2 being in Namibia. The trial magistrate explained that Appellant 1 claimed she was in Namibia to sell goods, while Appellant 3 asserted that they had planned to turn Appellant 4 and the children into the police station located nearby the refugee camp. The trial magistrate reasoned that it did not make sense that Appellant 1 and 2 would travel all the way to Namibia before turning Appellant 4 and the children into the police in Zambia.
Based on this contradictory testimony, on the 14th of January 2018, the trial magistrate found each Appellant guilty on the charge of trafficking in persons, holding that the prosecution had proved its case against the appellants.
The Court of Appeal for Zambia
All four Appellants appealed the trial magistrate’s decision on the following assertions:
- Silumesi’s testimony was improperly admitted into evidence, as Appellants had no opportunity to object to its admission.
- The prosecution failed to prove that Appellants recruited, transported, transferred, harbored, received or obtained the 14 children for the purpose of exploitation by any of the means laid out in the Anti-Human Trafficking Act.
- The trial magistrate convicted the Appellants because he did not believe their stories without considering whether the prosecution had proved its case against them. In doing so, the trial magistrate improperly shifted the burden of proof onto the Appellants.
The Court of Appeals (the “Court”) set out its reasoning as follows:
- It was insufficient to prove the prosecutions case by only showing that the children were undocumented and did not know where they were going. The prosecution failed to provide evidence regarding the means of transporting the children into and across Zambia. Furthermore, the prosecution failed to assert any evidence that the children were transported for purposes of exploitation.
- The Appellants were not given the opportunity to object to Silumesi’s testimony, and thus his evidence was improperly admitted and should not be considered. Without this testimony, there is only evidence that Appellant 1 and 4 entered Zambia with 14 children who had no travel documents, who they claimed to be related to. The only remaining evidence against Appellant 2 was that he was apprehended with Appellant 1 in Namibia.
- The trial magistrate could not convict the Appellants on the basis of disbelieving the Appellants’ testimony alone. It was necessary to first consider whether the prosecution had proved all elements of the crimes charged.
- The prosecution failed to prove each element of the human trafficking charges. They only proved that Appellants 1 and 4 transported the children into Zambia from the DRC, and that Appellant 3 assisted in lodging them. The prosecution failed to provide evidence that any of the necessary means were used to transport the children, or that they were transported for the purpose of exploitation.
- The context of Appellant 1 and 4’s entry into Zambia is relevant. Given the circumstances surrounding the war in the DRC, the Court held that coming into Zambia with undocumented children cannot be the sole basis on which Appellants are convicted of trafficking in persons.
The Court concluded that because the prosecution failed to prove all elements of the crimes charged, the convictions were overturned.
Married to Appellant 4. Mother/aunt to the 14 children.
Agent for bus operator in Sesheke.
Married to Appellant 1. Father/Uncle to the 14 children.
Imprisonment with hard labour.
Conviction overturned and Appellant 1 released.
Imprisonment with hard labour.
Conviction overturned and Appellant 2 released.
Imprisonment with hard labour.
Conviction overturned and Appellant 3 released.
Section 3(1) of the Anti-Human Trafficking Act
3. Prohibition of trafficking in persons
(1) Subject to subsections (2) to (11), a person who intentionally and unlawfully trafficks another person commits an offence and is liable, upon conviction, to imprisonment for a term of not less than twenty years and not exceeding thirty-years.
(2) Where the victim of an offence under subsection (1) is a child, the offender is liable to imprisonment for a term of not less than twenty-five years and not exceeding thirty-five years.
Trafficking in Persons
Imprisonment with hard labour.
Conviction overturned and Appellant 4 released.
Judgment, Court of Appeal for Zambia CAZ Appeal/No.154/155/156/157/2018.
The case is relevant as it gives guidance to the application of the national trafficking in persons provision. According to the Zambian legislation on trafficking in persons, the Act, Means, and Exploitation elements are required for all acts of trafficking in person regardless of the age of the victim.
In addition, this case is notable in that the Court of Appeals rested part of its reasoning on the fact that Appellants 1 and 4 were fleeing from an armed conflict. The Court specifically stated that this context is relevant, and that because of the Appellants’ circumstances, transporting the children across the border without the necessary travel documents did not constitute trafficking. This approach also reflects the Interpretative Notes of the Protocol against the Smuggling of Migrants, which emphasizes that those who act for purposes other than obtaining a financial or material benefit, and instead act out of humanitarian concern, are not subject to criminalization under the Protocol.
For more information on the review of the law of Zambia on trafficking in persons, please see: https://www.unodc.org/unodc/en/human-trafficking/Webstories2019/zambia-gains-momentum-in-its-review-of-the-anti-human-trafficking-act-no-11-of-2008.html