Trafficking Vs Smuggling – Court Explains

GUEST ARTICLE: Trafficking Vs Smuggling – Court Explains

By Dickson Jere

A truck driver was stopped by the police at the roadblock in Chinsali. Upon searching the truck, the police found a Somalian national hidden in the cabin and had no papers to be in Zambia. The driver was arrested and charged with an offence of smuggling of persons contrary to the Anti-Human Trafficking Act of Zambia.

When he appeared before Court, he denied the offence. However, when the police officer gave his testimony, the driver changed his mind and pleaded guilty to the offence. So, the Prosecution had to produce the statement of facts to the Court for the driver to take plea. After pleading guilty, he was sentenced to 15 years with hard labor by the High Court since the offence had longer sentences beyond Magistrate jurisdiction.

However, something happened.
A close look at the Statement of Facts showed that the prosecution used interchangeably the words “smuggling” and “trafficking”. This prompted an appeal to the Court of Appeal in which the lawyer for the driver argued that the conviction was defective as “smuggling” and “trafficking” are not the same. Therefore, the driver should be acquitted.

The State conceded that the prosecution erred in drafting the Statement of Facts but that a fresh trial should be ordered instead.

A panel of three Judges of the Court of Appeal heard the case.
“It would appear that there was some confusion with regards what the actual offence the appellant was admitting to,” the Court noted.

“The statement of facts merely states that the accused person did traffic a human being. The difficulty presented by the statement of facts is that it brings in trafficking, which the accused person was not charged with,” the Judges said.

Because of the confusion by the statement of facts, the Judges ruled that the 15 years conviction was unsafe and therefore set it aside and ordered that the matter be properly redone but by a different Magistrate.

“Overall it is crystal clear that between these two offences, there are some key distinguishing elements. It is therefore the role of the prosecutor to examine the facts of the case and make a decision as to which crime has been committed,” the Judges guided.

The  Court explained that under “smuggling”, a person arrested and convicted attracts a 15-20 years imprisonment while “human trafficking” one gets between 20 to 30 years imprisonment.

“In the case of a relationship between the smuggler and the smuggled, it is normally a commercial transaction which ends after the border crossing,” the Judge explained, adding that in trafficking, the victims do not consent and are used for business.

Case citation – Mwaimu Mohamed Bakara v The People- Appeal No. 215/2020

Lecture Notes;

1. In smuggling, it involves the illegal entry into Zambia by a foreigner aided by someone who has financial or material gains and usually the foreigner consents to the crime. Both the smuggler and smuggled commits the offence.

2. However, in trafficking, there is  no consent by the victim and it can happen within the country and the only person who commits the offence is the trafficker. It does not necessarily need to involve a foreigner. This entails an ongoing exploitation to generate profit for the trafficker.