Trauma informed care for women survivors of human trafficking within the Kenyan context.
By Christine Njagi- Principal Magistrate, Kenya Judiciary
Introduction
Trauma affects us all in different ways and so each one of us deals differently with its effects. As a Trial Court, Trauma Informed Care pathways should not be a ‘one size fits all’ conversation but can be modified to accommodate the diversity of the situations of each survivor we experience in our Courtrooms. As a Judge or Judicial Officer, we need to be watchful, be careful, be caring and above all be informed.
Human trafficking or trafficking in persons (TIP) is not only modern-day slavery it is dehumanising and a scourge within society. The Protocol to prevent, suppress and punish trafficking in persons, especially women and children (Palermo Protocol)[1] provides the internationally accepted definition of human trafficking.
Kenya ratified and also domesticated the Palermo Protocol by enacting the Counter-Trafficking in Persons Act, 2012 (C-TIP Act)[2]. The Act at Section 3 outlines the offence of trafficking in persons laying out the three elements of TIP as the act, the means and the purpose. Various other offences are enumerated within the C-TIP Act. Survivors of human trafficking when they appear in Court may appear as survivors/witnesses in cases where persons have been arrested and charged with the offence of trafficking in persons. Unfortunately, at times they may also appear as accused persons charged under Section 53 (1) (j) of the Kenya Citizenship and Immigration Act[3] as being unlawfully present in Kenya or entering Kenya unlawfully. They may also be charged with drug trafficking, theft, prostitution or offences of begging in the streets.[4]
When the Courts listen to these cases, they are also affected by the stories that they listen to from the survivors, most of whom are women. The Courts seek to protect and respect the rights of survivors as well their interests while also balancing justice for the accused. This forms the basis of how Courts deal with trauma experienced by the survivors. Trauma informed care is a necessary component for all the stakeholders who engage with survivors.
Trauma informed care (TIC) is defined as:
“Trauma-informed care is a strengths-based framework that is grounded in an understanding of and responsiveness to the impact of trauma, that emphasizes physical, psychological, and emotional safety for both providers and survivors, and that creates opportunities for survivors to rebuild a sense of control and empowerment.”[5]
Following this definition of TIC one author notes that: “By implementing and utilizing trauma-informed practices within the criminal justice system, we lessen accommodation needs for trauma survivors.”[6]
Trauma informed care for survivors within the Kenyan Courts
A traumatized survivor when they appear to testify in Court may look distant, numb or scared. The Courts when we encounter such survivors, we should ensure that we reduce re-traumatization of the survivors during the criminal trial. Courts have adopted various strategies to safeguard the well-being of the survivors during the criminal trial. One of the strategies adopted is provided at Section 22-Part V of the C-TIP Act[7]. At this Section Courts are at liberty to make orders that proceeds of crime recovered during the trial be deposited in the National Assistance Fund for Survivors of Trafficking in Persons. The said funds can then be utilized to assist survivors.
Further orders that Courts can make for the support of survivors is also to have funds remitted to the Victim Protection Trust Fund that is established under Section 27 of the Victim Protection Act, Act No. 17 of 2014.[8] The role of the survivors or victim is also noted under the said Act where at the tail end of the trial they participate by giving Victim Impact Statements where their sentiments are also noted before the accused is sentenced. This also gives them some sought of closure in the matter.
Other strategies in place are having tissues, pads, change of underwear, breast pads or water during the Court session, which can make the survivor feel at ease or simply changing one’s tone or demeanour during trial are reassuring to the survivor. The Court also informs the survivor of the Court processes and also that should they feel like taking a break they can notify the Court and the same is arranged. In cases where there is a witness protection box, the survivor is allowed to enter before all other persons and they can access the Courtroom through the Magistrate’s corridor and door.
The Court also prioritizes cases to ensure that survivors are assisted through the judicial system as fast as possible. This is done by ensuring that interpreters are available in cases where the survivors don’t understand the language of the Court. Proper active case management is done to ensure that the accused is supplied with the adequate documents and time to prepare and take the evidence of the survivors at the earliest opportunity.
Courts also partner with other key organizations such as HAART Kenya who offer not only psychosocial support but they also offer shelter to the survivors of human trafficking as the case is progressing. Partner organizations also assist with the repatriation process for the survivors to their countries of origin for them to be reunited with their families. In cases of minors as survivors of human trafficking the Child Protection Units (CPU) offer a safe zone for minors to be placed as the matter proceeds as well as for them to receive food, shelter, medical assistance and also a safe zone to meet with counsellors. Vulnerable witnesses are also protected with the assistance of the Witness Protection Agency.
The Court trains other Court Users through the Court User Committees (CUCs) on how to interact with survivors when they encounter them. For example, Judges and Judicial Officers as well as CUCs benefitted from the training on Trauma Informed Care offered by the International Association of Women Judges-Kenya Chapter (IAWJ-KC) and the Global Fund to End Modern Slavery (GFEMS). Through this training the police as first responders were taught on how to interact and deal with such survivors, and how to engage them to get pertinent information that can assist in their investigations. The prosecution was also trained on how to embrace pre-trial processes that are trauma informed to ensure that the survivor is at ease during trial. The Court staff were also sensitized on how to engage with survivors and how to debrief after traumatizing cases.
Challenges
There are some challenges when dealing with survivors. A major challenge would be language barrier and the ease of acquiring an interpreter either for the survivor of the accused. The delay to get one can also prolong the case. The lack of safe houses and funding for such houses can lead to difficulties placing the survivors as the case progresses. Fear of victimization and or general fear of repercussions from the organizers can also make the victim/survivor not divulge pertinent information to assist in the case.
Recommendations
Some recommendations of dealing with these challenges is to lobby for each court to have at least one safe house and one Child protection unit to cater for survivors. The Courts when delivering their judgements to reduce the aspects of victimization can publish the names of survivors which are redacted or by using pseudonyms. More engagements between stakeholders dealing with human trafficking can be organized to keep abreast of the ever-changing circumstances of cases involving human trafficking. Best practices from various stakeholders and other jurisdictions can be exchanged. More training is still required for Judicial officers and Judges and the IAWJ-KC who are the Trainers of Trainers are well placed to offer the same through the support of the Judiciary and other partners.
Conclusion
As Trial Courts we have a role of ensuring that we promoting a victim centred approach as we deal with survivors/survivors in cases of human trafficking. With the valuable resources and support from key partners this is achievable and will ensure that all the justice actors are effectively dealing with the vice of trafficking in persons in the Country.
People start t to heal the moment they feel heard
Cheryl Richardson
[1] Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime Adopted and opened for signature, ratification and accession by General Assembly resolution 55/25 of 15 November 2000 available at https://www.ohchr.org/sites/default/files/ProtocolonTrafficking.pdf. Accessed on 14th of July, 2023.
[2] Counter-Trafficking in Persons Act; Act Np. 8 of 2010. Available at: http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%208%20of%202010#part_V. Accessed on 20th of July, 2023.
[3] Kenya Citizenship and Immigration Act, Act No. 12 of 2011. Available at: http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2012%20of%202011. Accessed on 21st of July, 2023.
[4] Kenya Judicial Bench book on Labour Trafficking, 2022.
[5] Hopper, E. K., Bassuk, E. L., & Olivet, J. (2010). Shelter from the Storm: Trauma-Informed Care in Homelessness Services Settings. Available at: file:///C:/Users/user/Downloads/Shelter_from_the_Storm_Trauma-Informed_Care_in_Hom.pdf. Accessed on 14th of July, 2023.
[6] Sarai Cook, Esq., Servant Leader, National Trauma Awareness Initiative (2021). PROMOTING ACCESS TO JUSTICE THROUGH TRAUMA-INFORMED COURTS. Available at: https://www.prainc.com/gains-promoting-justice-trauma-informed-courts/. Accessed on 14th of July, 2023.
[7]Counter-Trafficking in Persons Act; Act Np. 8 of 2010. Available at: http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%208%20of%202010#part_V. Accessed on 20th of July, 2023.
[8]Victim Protection Act; Act No. 17 of 2014. Available at: http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2017%20of%202014#part_V. Accessed on 20th of July, 2023.