With the eyes of the world now more sharply focused on human trafficking, all attempts by African courts to help stamp it out are important and will be reflected in annual international surveys. Though cases involving trafficking charges are still rare, a Swazi judge, Mzwandile Fakudze, recently heard a bail application by a suspected trafficker and turned him down.
Human trafficking is said to be the fastest growing criminal activity in the world next to crimes related to the drug trade.
But despite the enormity of this problem, judgments dealing with trafficking are relatively rare in African courts. One recent exception is the Eswatini case of Langa v The King, a preliminary skirmish in what could be the first trial in that country involving charges relating to human smuggling.
Alex Pound Langa was arrested by the police and charged with four counts. These related to contravening the Immigration Act and the Citizenship Act, as well as contravening the Human Trafficking and People Smuggling Act.
Held by the police, he asked the court for bail. Judge Mzwandile Fakudze who heard his application said that according to Langa, he arrived in Eswatini in 2005 ‘using an emergency passport’. Langa told the court that he has not left the country since then and had a ‘strong intention’ to stay on as his ‘domicile of choice’. Unfortunately, the judge did not indicate Langa’s home country and little emerged in the judgment about exactly what Langa is alleged to have done.
He told the court that he has three children born in Eswatini whose mother is a Swazi. As he has been in that country for nearly 13 years, he would qualify for permanent residence. In fact, he was in the process of acquiring it when he was arrested, he claimed.
The police allege that Langa supplied certain documents related to trafficking, but according to Langa he has no device to make these documents and none was found in his possession. He also denied smuggling anyone into the country, claiming that he was being framed and that he would plead not guilty when he was tried.
In his argument for bail he said he would be financially disadvantaged if he were kept in custody pending trial. ‘He lives from hand to mouth’ selling vegetables and doing other informal jobs. ‘If he does not work, his family will suffer.’
His final point is one that researchers into trafficking and the effectiveness of the laws dealing with it ought to note. According to Langa, the sentences he would face if convicted were ‘normal’ and would not sway him to evade trial. (The country’s anti trafficking laws create a variety of offences attracting up to 20 years in jail plus a fine, to be decided on by the court, as compensation for the victim. Where children are involved the penalty may be up to 25 years.)
In response, the state said Langa was a foreigner and that the offence with which he was charged was very serious. Police had tried to find and pick him up for some time, but they had failed as he had been evading arrest. He was a ‘prohibited immigrant’ and if he were convicted, he was likely to be deported once he had served his sentence. Though Langa claimed to be in Eswatini lawfully, police investigations showed that he forged his entry permit as well as his identity document and his travel documents.
In the view of the state, he would not stand trial if he were given bail. The state told the court that even if he were to be released on bail in connection with trafficking, he would have to stay in custody ‘pending deportation’.
Judge Fakudze cited the law that said an accused’s prolonged pretrial detention should be avoided if there were another secure way of ensuring attendance at trial.
Langa had shown that he had been in the country since 2005 but he had not established that he was a national of Eswatini. Nor did he have ‘roots’ that would compel him to stand trial, such as a ‘substantial investment’.
A Swazi fiancée and three children was ‘not good enough’, said Judge Fakudze.
‘The court has also taken into account the fact that (Langa) has been charged with two serious offences pertaining the trafficking of human beings. There is also a charge of falsifying documents to help non Swazis obtain … documents like identity cards and passports. The seriousness of the offences may lead to (him) not standing trial.’
In view of all these concerns, Judge Fakudze refused bail, but ordered that the trial should be ‘expedited’.
- Newsletter, Judicial Institute for Africa (Jifa), 15 August 2019