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The Legal Framework

The primary pillar of every anti-trafficking strategy is to enhance the state’s anti-trafficking capacity, first and foremost by adapting its legal framework. The importance of this is made clear in the Palermo Protocol, Article 5 of which holds that ‘Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol [defining trafficking].’ The strength of this language underscores just how crucial anti-traffickers see this to be. Where later parts of the Protocol merely suggest or recommend that states ‘consider’ taking certain actions, in this case, they are actually required to do so. Passing an anti-trafficking law, it seems, is the anti-trafficking sine qua non.

This was made clear to me in practice when I interviewed Cotonou’s international anti-traffickers. Although the country’s anti-trafficking law ultimately received presidential assent in 2006, the anti-trafficking community had begun lobbying for it as early as 2001, right after the Etireno crisis. Cecilie was the head of her European donor mission when we spoke in 2010 and explained that donors and international NGOs had put the government under immense pressure from the get-go. Already in 2002, for example, they had put together a draft text of the legislation, which a UN agency chief then mobilised his expatriate network to lobby around. At the same time, one of the more powerful Western donors had threatened the Beninese government with a cut in bilateral aid ‘unless it got a law on the books as quickly as possible.’

The content of this law makes Benin a classic case of the draconian legislation characteristic of the last decade (as can be seen from the text reproduced in Appendix C). It seeks not only to define and outlaw the ‘trafficking of children’ and make prosecuting their traffickers possible, but much more broadly to govern all child mobility, to establish norms around which kinds of movement (and work) are legitimate for under-18s, and to ban and suppress all others. Its full title tellingly reads, ‘Law Regulating the Movement of Minors and Suppressing the Traffic in Children’ (Loi N° 2006-04). What does this entail? Article 14 bans minors from migrating independently, while Article 7 establishes that they are permitted to move only when accompanied by a parent or guardian or with the consent of a local government official. This consent is to be offered only if a number of strict conditions are met. First, the family placing the child must have all the child’s papers in order. Second, they must have enough money to pay for the child’s return. And third, they must be able to demonstrate that the child’s relocation is for the purposes of school attendance or for an official apprenticeship in a state-sanctioned sector. In this respect, Article 4 is also crucial, since it establishes both that any mobility for the purposes of exploitation will constitute trafficking and that exploitation includes everything at the nexus between the Palermo Protocol and ILO Conventions 138 and 182, as per the list in Extract 1.1 provided earlier.

What does this mean? In practice, it means that the Beninese state has effectively rendered the labour migration of the vast majority of its young people legally equivalent to trafficking. This is because, although Convention 182 was designed to be more ‘lenient’ and ‘realistic’ than Convention 138 (in that it targets only the ‘worst forms of child labour’), it nevertheless leaves the definition of what comprises the category of ‘work that harms the health, safety, or morals of young persons’ up to each national government. And in Benin, the work included in that category is extremely broad indeed. Second, the law implicates the state directly in personal and familial mobility decisions, offering state agents a veto power over any individual departure. And third, it makes moving legally very difficult, even where movement is a benevolent expression of the ‘placement’ and circulation that are established elements of Beninese childrearing, because so few rural families have the paperwork or money necessary to comply with the law.

Surely, this was just a case of accidental legislative heavy-handedness? Not according to my interviewees. When I asked Alec, a Beninese national working for UNICEF in Cotonou, what he thought of the law, he literally shouted at me that ‘ALL MOVEMENT SHOULD BE CONTROLLED!’ His friend at the Family Ministry bluntly concurred, admitting that ‘the goal is to ban placement,’ before adding: ‘You can’t tell the difference between placement and trafficking anyway, so we need to ban it all.’ Although not everyone I spoke to shared such draconian positions, and although some did see the difference between child work and child slavery, most did agree that stopping mobility was at least the most efficient, cost-effective means of pursuing an anti- child trafficking strategy. In the timeless words of one Beninese civil servant, ‘It’s easier if we stop them moving.’

 
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