Full Circle

Exploring the Nexus Between Child Trafficking and HIV/AIDS

Full Circle : Exploring the Nexus Between Child Trafficking and HIV/AIDS

The CRADLE-The Children Foundation [2009]

...thus the impact of HIV/AIDS can go full circle, from affecting a child to the child becoming infected.1

TABLE OF CONTENTS 1.0 Introduction .............................................................................................................................................. 5 2.0 Understanding the Problem: ............................................................................................................... 6 2.1 What is Child Trafficking?................................................................................................................................. 6 2.2 Nature of trafficking ............................................................................................................................................ 7 2.3 For What Purposes are Children Trafficked? ........................................................................................... 8 3.0: Child Trafficking and HIV: Exploring the Nexus........................................................................ 11 3.1 Overview on HIV/AIDS in Kenya ................................................................................................................ 11 3.2 Child Trafficking and HIV/AIDS- The Causal Link ............................................................................... 11 3.2.1 Categories of Vulnerable Children ..................................................................................................... 12 3.2.2 Poverty .......................................................................................................................................................... 12 3.2.3 Breakdown of family and community support............................................................................. 13 3.2.4 HIV as a Direct Cause ............................................................................................................................... 14 3.3 Child Trafficking and HIV/AIDS: The Impact Link .............................................................................. 15 3.4: The Political and Socioeconomic Intersection: Other Linked Vulnerabilities ........................ 15 3.4.1 Poverty .......................................................................................................................................................... 15 3.4.2 Political Instability and Conflicts ........................................................................................................ 16 3.4.3 Corruption ................................................................................................................................................... 16 3.4.4 Gender-based discrimination and violence ................................................................................... 16 3.4.5 Weak legal and institutional framework......................................................................................... 17 4. Response to Child Trafficking and HIV/AIDS: Overview of the Legislative Framework 17 4.1 Counter Trafficking Initiatives..................................................................................................................... 17 4.2 Initiatives to Address HIV/AIDS: ................................................................................................................ 19 4.3 International Obligations ............................................................................................................................... 20 5.0 Integrating Interventions ................................................................................................................... 21 5.1 Enhancing Legal and Institutional Protection ....................................................................................... 21 5.2 Addressing Vulnerability at Source ........................................................................................................... 21 5.3 Child Trafficking and HIV/AIDS: A Human Rights Approach ......................................................... 21 5.4 The Gender Dimension ................................................................................................................................... 23 5.5 Mainstreaming interventions....................................................................................................................... 23 6.0 Conclusion ................................................................................................................................................ 23

1.0 Introduction
The rights of children have been recognized with equal importance as the rights of all. This is manifested by various Conventions, Declarations, Laws and Policies enunciated on the rights of the children at the international, regional and national levels. Yet, existence of such instruments does not translate into wholesome protection of the child in practice. Children continue to suffer various forms of abuse, physical, sexual, and emotional abuse. In addition, emerging challenges, pose new threats to the life and development of children. Child trafficking is one such major threat. It is not only a threat but a violation of the rights of the child. Children today are trafficked within and beyond national and regional borders. The United States Department of Justice estimates that 700,000 women and children are trafficked every year across borders. These are global estimates and the figures could be more, appreciating the fact that in some countries, data on the number of children affected is nonexistent. As a result of trafficking, children suffer various forms of abuse and exploitation; all in all, they are denied their right to protection and development. Human trafficking is in fact a multibillion dollar business that the United Nations has ranked third following drug trafficking and sale of illegal arms. This paper looks at the problem of child trafficking in Africa with a focus on Kenya. Factors that contribute to the problem are examined with a view to suggesting possible solutions to the problem. In particular, the paper centres on the correlation between HIV and child trafficking. HIV/AIDS prevalence remains highest in Sub-Saharan Africa. Combating the disease has been a challenge especially in the developing countries where the prevalence rate is high. Lack of resources and limited access to medical assistance are among the major contributing factors. As such, HIV/AIDS has posed serious challenges to the development of nations and cannot therefore be side-stepped in addressing problems facing children in particular, child trafficking. It is against this backdrop, that the paper further assesses the impact of HIVAIDS on children and how it contributes to increased vulnerability of children to child trafficking on one hand and how child trafficking on the other hand exposes children to risks such as sexual exploitation thereby exposing them to the risk of contracting the disease. The paper also looks at the factors that intersect both the problems of HIV/AIDS and child trafficking including the common vulnerability factors and other socio-economic factors. These will further show the nexus between the two issues. The vicious cycle demonstrated in the discussion therefore underpins the need for adopting a holistic approach in addressing child trafficking. The problem should not be addressed in isolation, rather, there is need to consider the underlying causes that expose children to risk of exploitation. Thus, interventions must be alive to the risks posed by HIV, both as a contributing factor to child trafficking and as a possible risk resulting from child trafficking. Dealing with the underlying causes gives rise to sustainable solutions that address vulnerability at source as opposed to curing symptoms without preventing recurrence of abuse. 5

2.0 Understanding the Problem:

2.1 What is Child Trafficking?
Trafficking in persons has been defined2 as the recruitment, transportation, transfer and harbouring or receipt of persons by means of threat or use of force or other means of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving and receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation is defined to include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. From the definition provided for in the Palermo Protocol, three elements of trafficking in persons must be established in order for an act to amount to trafficking in persons. These include, the act, the means and the purpose.

Recruitment, Transportation, Transfer, Harbouring, Receipt

Threat or Use of force Other means of coercion Abduction Fraud Deception

Exploitation (which includes) Prostitution of others Sexual exploitation Forced labour or services Slavery/practices similar to slavery Servitude Removal of organs

of persons

Abuse of power/position of vulnerability Giving & receiving payments/ benefits to get consent of a person who has control over another person

The Palermo Protocol goes on to provide a child-focused definition of trafficking by providing that trafficking in children shall mean the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation; where exploitation shall include at a minimum, the exploitation of the prostitution of others or other forms of exploitation, forced labour or services, slavery of practices similar to slavery, servitude or the removal of organs. 6

From the definition, it is clear that trafficking of children for purposes of exploitation suffices to be a crime irrespective of the means that are used. As opposed to the general definition of trafficking in persons, the means applied are immaterial where children are concerned. The rationale behind this special protection is that children due to their nature, age and evolving capacities are easy to fall prey to various forms of exploitation as they may not be able to make conscious decisions or discern possible exploitation. In essence, consent is immaterial since the means so provided in the definition of trafficking in persons, would have the effect of tampering with the consent of a person. A child has no capacity in law to consent.

Recruitment, Transportation, Transfer, Harbouring, Receipt

Exploitation (which includes) Prostitution of others Sexual exploitation Forced labour or services Slavery/practices similar to slavery Servitude

of a child Removal of organs

2.2 Nature of trafficking

Child trafficking takes place within and across borders. Within a countrys borders, it is known as internal trafficking, while it takes an international angle when it takes place across borders, regionally or internationally. Kenya has been classified as a source, transit and destination country.3 In East Africa, urbanization and strong urban/rural connections have been cited as important common factors as well as the concentration of labour intensive industries in certain areas of the country. Rural and poor slum communities are common points of origin, while urban centres, labour intensive agricultural and industrial areas and tourist areas such as Coastal Kenya have been mentioned as points of origin. Urban centres, labour intensive agricultural industrial areas and tourist centres are common destinations in Kenya.4 The northern and western parts of Kenya are also known points of origin.5 In Kenya, trafficking of young girls to Europe by syndicates run by businessmen, and trafficking of girls from India and parts of South Asia to Kenya, has been known to take place especially for the local sex industry. Kenya also serves as a transit route for trafficked Ethiopian women to Europe and the Gulf States. In Uganda and Kenya, some orphaned girls who are in the care of
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relatives are reportedly sold to traffickers under the guise of securing them a better education. Traffickers are known to transport Ethiopian women via Tanzania and Kenya to avoid the Ethiopian Governments employment recruitment regulations, which protect the rights and safety dignity of Ethiopians.6

2.3 For What Purposes are Children Trafficked?

There are over I million child victims of trafficking worldwide, children constitute over 50 percent of all trafficked persons

While there have been numerous studies on the subject of child trafficking, there is no accurate data on the exact number of children who have been trafficked. However, estimates indicate that there are over I million child victims of trafficking worldwide7, while other reports8 indicate that children constitute over 50 percent of all trafficked persons. These alarming figures are an indication that children are prime targets by traffickers. Trafficked children are subjected to various forms of exploitation, the most common of which including: a) Provision of Cheap Labour: Children are trafficked to work in plantations, mines, and farms among others. Another form of exploitative labour that children undergo is domestic work. This in most cases is common in internal trafficking where children are mainly trafficked from rural to urban areas. In these instances, parents and guardians are often lured with promises of education or a good job for their children. Once trafficked, the children end up being exploited through working for long hours with little or no pay. They are denied an opportunity to attend schools. There have also been instances when children are subject to physical and emotional abuse as well as sexual abuse by their employers. According to the ILO, there are 246 million child labourers in the world today, most of whom are in the developing world. 186 million of them are under 15 years, while 170 million are engaged in hazardous work. 8 million of the children are trapped by its most abhorrent forms; slavery, bonded labour, serfdom, forced labour, prostitution and armed conflict. In Kenya, an estimated 41.3 percent of children between 10 and 14 years of age are being exploited for cheap labour. In 2002 the Kenyan government reported that there were an estimated three to four million child labourers in the country working under hardship conditions. Government figures suggest that there are between 150,000 and 200,000 street children in Kenya, with the majority (60,000) in Nairobi. However, according to the Nairobi-based African Network for the Protection and Prevention against Child Abuse and Neglect (ANPPCAN), up to 3.5 million Kenyan children of school-going age are out of school, and large numbers of those are working on the streets.

b) Sexual exploitation Children are also trafficked to work in brothels, massage parlours, prostitution rings or clubs, or to produce pornographic materials. Though it is difficult to determine precisely, ILO global child
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labour figures for the year 2000 estimate that 1.8 million children are exploited in the commercial sex industry, suffering extreme physical, sexual and psychological violence and abuse by traffickers, pimps and customers. UNICEF estimates that some 30,000 Kenyan children are being exploited in the sex industry and that this figure is likely to be an underestimation due to the lack of monitoring and the social stigma inhibiting children from reporting abuses.9 This is concentrated at the Coast of Kenya especially Mombasa, Ukunda, Malindi and Nairobi, occurring in hotels, private villas, and beaches.

c) Military conscription Children have been trafficked to be recruited as child soldiers. It is estimated that child soldiers have been used in more than 30 ongoing or recent armed conflicts in almost every region of the world. Children either join fighting forces due to poverty or abuse, or they are forcibly recruited or abducted. They are used as messengers, cooks, wives who provide sexual services for combatants. While this is not common in Kenya, it has taken root in the form of forced or coerced recruitment into criminal militia gangs such as Mungiki. There have been reports that the illegal sect has been recruiting pupils even in primary and secondary schools. d) Child Marriage Girls have been especially vulnerable to trafficking for marriage. Due to poverty, families opt to look at the economic gain of marrying off their young daughters, blind to the negative consequences on the children. Sometimes, they are married off to male migrants through arranged marriages. Incidences of child marriages have been highly reported in Central and Western Africa, where 40 per cent and 49 per cent, respectively, of girls under the age of 19 are affected.10 e) Illegal Adoption Demand for babies by childless couples has accelerated the trafficking of babies and young children for illicit adoptions. In some cases, mothers due to poverty sell their children. In other cases, babies are stolen in hospitals at birth and sold in collusion with hospitals birth attendants and nurses, where mothers whose babies are stolen are duped that the babies were born stillborn. f) Begging Children may be recruited and trafficked to earn money for others by begging or selling goods on the street. In some cases, child beggars are used by the traffickers to engender sympathy and greater charity. g) Sale of organs Trading in organs, though not common is a known practice that exposes children to trafficking. The recent attacks on children with albinism in Tanzania and parts of Burundi and DRC are an example of how demand for body parts can fuel child trafficking. In this instance, children were being attacked for removal of body parts whose demand was propelled by the superstitious belief that they would bring good luck and fortunes. 9

h) Sports The emergence of sports as a lucrative source of income attracting multibillion dollars in investments has posed a new threat to child trafficking. Children are at risk of being trafficked for sports such as camel jockeying, athletics, football among others.

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3.0: Child Trafficking and HIV: Exploring the Nexus

It is not in doubt that both HIV/AIDS and human trafficking threaten child development, children and women being the most affected. The numbers of victims either affected directly or indirectly are numerous in both instances. However, there has been minimal effort to address the linkage between the two issues, though HIV/AIDS has been acknowledged as a major contributing factor in enhancing vulnerability of children to trafficking. However, there is need to broaden the nexus and assess whether the same would call for increased integrated efforts towards addressing a compound problem by building upon the linkages at policy and programmatic levels. This section points out at areas of convergence common to both child trafficking and HIV/AIDS. This is emboldened by the basic fact that the two issues share linkages, causal and consequential which need to be explored further and contextualized to inform interventions that can address dual vulnerabilities of trafficking and HIV/AIDS.

3.1 Overview on HIV/AIDS in Kenya

Kenya has 1.3 Sub-Saharan Africa remains the region most heavily affected by HIV, accounting million for 67% of all people living with HIV and for 75% of AIDS deaths in 2007.11 orphans. The estimated population in Kenya stands at 36 million, with over 50 percent of the population below 15 years of age.12 Kenya is the twenty-second poorest country in the world with a per capita income of US$ 239. The HIV/AIDS pandemic has added to the problems that Kenya faces as a developing country. UNAIDS estimates indicate that about 12 million children under 18 years have lost one or both parents as a result of HIV/AIDS in Sub-Saharan Africa.13 In Kenya alone, the epidemic has resulted into 1200 children being orphaned or left without one parent on a daily basis. Kenya has 1.3 million orphans.14 Over 60% of those infected live in the rural areas where the socio-economic conditions are worsening due to poverty and unemployment. The rapid spread of the pandemic further compounds efforts towards full realization of the rights of children proliferating existing problems. The magnitude that is the impact of HIV/AIDS in Kenya, calls for mainstreaming of HIV/AIDS concerns in all child protection interventions, including addressing the problem of child trafficking.

3.2 Child Trafficking and HIV/AIDS- The Causal Link

Children have been trafficked for several reasons. A number of factors contributing to the increased trafficking in the Eastern African region have been documented.
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3.2.1 Categories of Vulnerable Children

Children are likely to be trafficked where there are no proper protection mechanisms to guard against exploitation. Thus, children who are trafficked are those that are in vulnerable situations that expose them to risk. They include girl children, children orphaned including as a result of HIV/AIDS, neglected and abandoned children, street children, children without care and protection, e.g. children without a place of safety, children infected with and affected by HIV/AIDS, children in institutions, children from poor family backgrounds, separated and displaced children. Children in the cited categories are largely unprotected Kenyan children and are therefore exposed to risks of possible trafficking. Worth noting is that HIV/AIDS, has contributed greatly to the vulnerability of children. As a result of HIV/AIDS there are increased number of poor children, orphans and other vulnerable children, street children, child headed households among others. There are an estimated 250,000 children are living on the streets, 60,000 of them in Nairobi. They are extremely vulnerable to sexual abuse. Most of the street children in Nairobi are from destitute families, slums, conflict areas and AIDS orphans. Desperation for food and survival forces them into transactional sex in exchange for food or drugs, thereby exposing them to greater risk of exploitation through trafficking.

3.2.2 Poverty
Socio-economic insecurity and the quest for better life in a foreign country is often a motivating force behind families falling to the lures of traffickers. The major push factor is extreme poverty and lack of economic opportunities within the country. Families may also result to illegal migration in a bid to seek economic benefits elsewhere as a result of which they may end up being exploited. Migrants who lack many benefits may in the process be trafficked due to their vulnerability. In fact, it has been established that people from poor, economically unstable backgrounds are predominantly targeted for trafficking closely followed by those who have been orphaned.15 Children have been pushed into exploitative work including child labour, child prostitution and exploitation due to poverty so as to complement earning within the family. For instance, the lucrative tourism industry at the coast among a poor population has exacerbated and increased the vulnerability of children to sexual exploitation. According to UNICEF,16 most of the sex workers include children whose basic needs cannot be met by family for reasons of unemployment, under-employment and loss of one or both parents. Further, child sex tourism is an accepted practice as it brings wealth and advantage to individual girls and their families and generates income that would benefit various sectors of the community.

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HIV/AIDS has had far reaching effects in Kenya both directly on the population and the countrys economic development. The epidemic has contributed to poverty in several ways. As the UN succinctly captures, ...the vast majority of people living with HIV in the world are in lowand middle-income countries, and poorer regions of the world bear a substantially greater burden of HIV disease. For example, sub-Saharan Africawhich has one of the highest rates of extreme poverty in the worldis home to just over 10% of the worlds population but accounts for more than two thirds (68%) of all people living with HIV.17 The earning capacity of affected families is diminished. This is because people suffering from the disease lose time due to illness or to provide assistance and care to ailing members. In worse cases, they may completely abandon their normal duties as the disease takes its toll or in the case of caregivers to dedicate full time support to ailing family members. In their eventual death, the family also loses its breadwinner thus diminished livelihoods. The loss of labour due to illness and diversion of productive labour to care giving demonstrate the double-edged negative impact of HIV/AIDS on economic survivals of households. The medical needs of ailing family members add to costs of living of the family. Medical care and related costs then causes the family to avert resources from other basic needs such as provision of food, clothing, shelter and education among others. Indeed, increased medical costs would cause families to borrow, utilize savings and sell assets, thus exacerbating a familys economic security. Due to the increased economic burden, priorities shift and children from affected households are likely to be forced out of school due to education related costs. Reduced family income is also likely to lead to withdrawal of children from school so that they can take an active earning role thus engage in child labour at the expense of their development.18

3.2.3 Breakdown of family and community support

As the IOM in its study indicated, ...the number, strength, and nature of a persons relationships affect whether they are trafficked or not.19 Children become deprived of family support due to various causes. Families become disintegrated for reasons such as death of one or both parents, disease, divorce and separation and even neglect by parents and caregivers. These instances are manifested by incidences of single parenthood, child headed households, orphans, separated minors and street children. In other cases while parents may be present, prevailing circumstances such as alcohol abuse may destabilize family unity and thereby lack of cohesion and support. The size of families has also been cited as affecting the level of family support accorded to a child. A large family would be a risk factor since parental care would not be prioritized where there are competing demands with limited resources. Increased incidences of abuse within the family and community setting have contributed to family breakdown as the community ceases to be a safe and support haven for children. Reports show that children continue to suffer abuse, physical, psychological and sexual abuse in the hands of those who are supposed to protect
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them.20 The people who abuse children within the family and community setting, are ideally supposed to provide a safety net for children. Incidences of armed conflict also contribute to disintegration of family units leading to separated minors, displacements or loss of parental care. Vulnerability of children has also been enhanced by reduced parental oversight, resulting from modernization, rural to urban migration, and neglect among others. The traditional extended family ties among African communities have diminished over time, breaking the social protection cycle within which children would be safeguarded in the absence of direct support at the nuclear family level. All the above enhance the vulnerability of children to trafficking as there are no protective mechanisms anymore to mitigate negative impacts of these factors. Absence of or reduced parental support also leads to increased poverty thus impact pressure on children to seek survival alternatives, and this leads to higher probabilities of exploitation of children. Again the effect of HIV/AIDS is at play in reduced family and community support. An estimated 13 million children have lost their mothers or both parents to HIV/AIDS. Globally, at least 90% of those orphaned through HIV/AIDS live in Sub-Saharan Africa. There are an estimated 2.1 million adults and children living with HIV/AIDS in Kenya, which has the ninth highest HIV prevalence rate in the world. To date there are some 1.8 million AIDS orphans who are particularly vulnerable to abuse to lack of support. Children affected by HIV/AIDS, especially through loss of a parent or both parents, face serious constraints, including, loss of opportunities to attend school, the need to supplement survival means pushes them to seek income opportunities, and take up roles as family heads. In Kenya, people in the category of 15 to 49 years have been largely affected by the epidemic.21 Thus the bracket of the less affected is the children and the aged. As a result, the burden of supporting children orphaned as a result of HIV/AIDS is mainly left to their grandparents who have less supporting capacity.

3.2.4 HIV as a Direct Cause

HIV/AIDS in itself has contributed directly to exposing children to trafficking. It serves as a cause of trafficking where children, specifically young girls are increasingly demanded for commercial sex work and even marriage. This demand is based on the unfounded belief that young girls are pure and therefore less likely to carry HIV/AIDS. In other cases, it is believed that having sex with an infant or a virgin would cure someone of sexually transmitted diseases including HIV/AIDS. Girls as young as eight have been sold for the purposes of marriage in some parts of Kenya. One of the impacts of HIV/AIDS has been more orphans in the country. Hard-pressed by additional role of caring for the orphans, caregivers opt to offer the girls for marriage to relieve themselves of the burden of taking care of the child. Incidences of child marriage are highly prevalent in Sub-Saharan Africa.22 It has been reported that in some parts of Sub-Saharan Africa, the HIV/AIDS pandemic has led to an increase in child marriages.23
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3.3 Child Trafficking and HIV/AIDS: The Impact Link

Both HIV/AIDS and child trafficking share common impacts. On the one hand, the impact of HIV/AIDS contributes to increased vulnerabilities to child trafficking while on the other hand child trafficking also results in among others the risk to HIV/AIDS infection. As already mentioned, children are trafficked for various purposes some of which directly expose them to the risk of contracting HIV/AIDS due to the nature of work they are exploited to do. One of the major contributing factors to trafficking is demand for sex. Many children are trafficked for sexual abuse and exploitation. Children are routinely trafficked to tourist centres for purposes of commercial sexual exploitation. Children trafficked for other purposes are also at risk to HIV/AIDS infection. Even those in exploitative labour are also abused sexually thus exposed to the risk. Child domestic workers, especially young girls often report human rights violations, including forced labour, physical and sexual assault and exploitation, forced prostitution, harassment, confinement, denial of salary, and false accusation. Sexual abuse and exploitation further expose them to sexually transmitted infections, including HIV/AIDS, dangerous abortions and early pregnancy with little pre and postnatal care. Victims of trafficking also lack access to information, legal protection, social services and protection and are left without recourse if infected with the disease. Low levels of awareness and lack of access to facilities make them particularly vulnerable to HIV infection

3.4: The Political and Socioeconomic Intersection: Other Linked Vulnerabilities

Child trafficking and HIV/AIDS are connected to a wide range of development issues: socioeconomic inequality, conflicts, corruption, lack of education e.t.c. The factors that increase a childs risk of being trafficked are also the factors that increase his/her vulnerability to HIV.24

3.4.1 Poverty
As already noted above, there is a correlation between poverty and human trafficking. In fact, reasons given by some victims of trafficking, include, the desperation to seek a better life. Due to poverty, people are left with little options for survival. As a result, they are likely to be lured by traffickers with promises of education, jobs and other opportunities. Kenya ranks 148 out of 177 countries on the Human Development Index for 2007/2008.25

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3.4.2 Political Instability and Conflicts

Political instability has contributed largely to situations of conflicts. In situations of conflict, women and children are the most affected. The post election violence that rocked Kenya after the disputed elections had no exceptional impact. Women and children suffered the brunt of the violence, suffering physical and other injuries, loss of property, breakdown of families, massive displacements, thus unsafe mobility and even death. During such times, there results in several cases of separated minors as children lose touch with care givers. Furthermore, even those accompanied by their guardians face imminent abuse and exploitation since there is minimal protection and the desperate circumstances of internally displaced persons put them at risk of exploitation by potential traffickers. In Kenya, it was reported that 30 children had disappeared from the Nakuru Showground where many had sought refuge. The children aged between 13 and 17 years, both boys and girls, had been lured by unknown peoples out of the camp with the promise of jobs but only to be exploited sexually.26 In addition, as a result of the post-election violence and related political stalemate, efforts to address anti trafficking initiatives were adversely affected, key in point being the delayed passage of the anti trafficking legislation and the draft national action plan on trafficking in persons.

3.4.3 Corruption
Kenya has been ranked poorly in global rankings on efforts to deal with corruption.27 Its standing in the world democracy index has also gone down. Corruption results in diverted resources, in most instances from needy causes such as social protection as funds are not appropriated to the proper causes. For instance, with regard to funds for dealing with the HIV/AIDS scourge, Kenya has been rated poorly in utilising and accounting for Global Funds money. Last year, the Kenyan government had to plead the at the Global Fund's headquarters in Geneva after the body threatened to suspend finances over allegations of mismanagement of funds.

3.4.4 Gender-based discrimination and violence

Kenya is a patriarchal society, and reported cases of gender based violence over the years, demonstrate how discrimination and violence against girls and women especially is perpetuated both within the family and community. This coupled with gender stereotypes reinforce the lower status of women and girls right from the early stages of development. Thus, the inevitable would be that women and girls would be most vulnerable to exploitation, trafficking and HIV/AIDS. HIV/AIDS prevalence in Kenya is higher in males than in females.28 School enrolment and retention is lower for girls in Kenya than boys. This diminishes their life opportunities, thus enhancing their vulnerability to abuse. As data on HIV/AIDS prevalence among young people in Kenya shows below:
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Male Prevalence among 15-24 year olds (%) Low estimate High estimate Source: UNAIDS/WHO, 2008 0.8 2.5

Female 4.6 8.4

Research also shows that women and children are the most vulnerable to trafficking. This is an indication of effects of underlying problems affecting them including, HIV/AIDS, poverty, discrimination, lack of opportunities among others.

3.4.5 Weak legal and institutional framework

As later discussions manifest, Kenya has made some efforts to dealing with certain issues relating to child protection. With regard to child trafficking, there is no comprehensive legislation. However, reference may be made to certain provisions in the Penal Code, the Sexual Offences Act, the Children Act, and the Employment Act. With regard to HIV/AIDS, there are also fragmented interventions at the Ministerial level such as the Ministry of Medical Services, Public Health, Education, Gender and Social Development among others. Furthermore, the HIV and AIDS Prevention and Control Act was enacted in 2006, but whose commencement date was three later after enactment. Despite existence of these laws, inadequate capacity among government institutions, poor accountability and law enforcement, corruption, and absence of political will among others hamper the realization of the rights enshrined in the legal framework. Furthermore, the laws themselves are not sufficient for instance the law on trafficking in persons. Budgetary commitment for the welfare of children in the country does not meet the existing needs. Thus, Kenyas ranking on commitment to fighting child trafficking remains low.

4. Response to Child Trafficking and HIV/AIDS: Overview of the Legislative Framework

Initiatives to address child trafficking and HIV/AIDS in Kenya have not been integrated as the various provisions cited here-below demonstrate.

4.1 Counter Trafficking Initiatives

There is no comprehensive law that solely deals with issues of trafficking in persons. However, fragmented provisions are available in the various laws as follows:

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a) The Children Act The Act29 provides for protection of every child from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person. It further calls for provision of treatment and rehabilitation for child victims of abuse. Part XI of the Act further makes provisions for dealing with children in need of care and protection. These provisions are vital for protecting children who are vulnerable such as children affected or infected with HIV/AIDS. b) Sexual Offences Act Child Trafficking is described as an act concerning a child entailing Knowingly or intentionally making or organizing any travel arrangements for or on behalf of a child within or outside the borders of Kenya, with the intention of facilitating the commission of any sexual offence against that child, irrespective of whether the offence is committed; Supplying, recruiting, transporting, transferring, harbouring or receiving a child, within or across the borders of Kenya, for purposes of the commission of any sexual offence under this Act with such child or any other person. A person (who includes a juristic person) convicted of the offence is, in addition to any other offence for which he or she may be convicted, liable to imprisonment for a term of not less than ten years and where the accused person is a juristic person to a fine of not less than two million shillings. c) Penal Code

The Penal Code provides for the following related offences: Kidnapping from Kenya30 defined as the conveying of a person beyond the limit of Kenya without the consent of that person or of other person who is legally authorized to consent on behalf of that person. Kidnapping of a minor under fourteen years of age (if male) or under sixteen years (if female) of any person of unsound mind out of the keeping of the lawful guardian without the consent of the guardian.31 These two offences are by an imprisonment term of seven years. Kidnapping or abducting a person in order to subject him/her or to dispose of that person as to be put in danger of being subjected to grievous harm, slavery, unnatural lust of any person, or knowing that the person is likely to be so subjected or disposed of. This is punishable by an imprisonment term of ten years.32 Wrongful concealment or confinement of a kidnapped or abducted person33 and the penalty is the same as if he had kidnapped or abducted such person with the same
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intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement. Buying, selling, importing, exporting or disposing of a person as a slave or accept, receive or detain a person as a slave against his will.34 The penalty for such offence is 7 years imprisonment. Habitual dealing in slaves, i.e. habitual importing, exporting, removing, buying, selling, trafficking, or dealing in slaves35 and is punishable by imprisonment for ten years. Unlawfully compelling a person to labour against his/her will.36 This offence is a misdemeanour. d) Employment Act Section 2 of the Act defines Worst form of child labour with respect to juveniles, as their employment, engagement or usage in any activity comprising of-all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory recruitment of children for use in armed conflict; the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as define in the relevant international treaties; Section 4 further makes it an offence for a person to use or assist any other person in recruiting, trafficking or using forced labour. This is punishable by a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding two years or both. Section 53 makes it an offence for a person to employ a child in any activity which constitutes worst form of child labour. The penalty for the offence is provided under section 64 as, a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding twelve months or both.

4.2 Initiatives to Address HIV/AIDS:

In 1999, the then President of Kenya declared HIV/AIDS a national disaster. Since then, there have been efforts to deal with the epidemic by the Government and other stakeholders. Key efforts made towards dealing with the issue include: a) The Establishment of the National Aids Control Council This body was established under the State Corporations Act in 199937 with a broad mandate of providing a policy and strategic framework for mobilizing resources and coordinating the same

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for prevention of HIV transmission and provision of care and support for those affected by or infected with HIV/AIDS. b) HIV and AIDS Prevention and Control Act38 This Act was enacted to provide measures for the prevention, management and control of HIV and AIDS, provide protection and promotion of public health and for the appropriate treatment, counselling, support and care of persons infected or at risk of HIV and AIDS infection. However, with the Act commencing 27th February on 2009 little has been done towards its implementation. c) National Policy on OVCs c) Other government initiatives The government has been devolving funds that would be applied towards assisting the vulnerable children in the country, who would include those affected by the HIV/AIDS pandemic. The Constituency Development Fund and the Cash Transfer Programme are worth highlighting as instances when the government is making efforts towards addressing vulnerability at source.

4.3 International Obligations

a) UNCRC Kenya is a signatory to the UNCRC which recognizes the rights of the child and among others requires that states should take all appropriate measures to protect a child from all forms of abuse, negligence or exploitation39 and prevent the abduction of, the sale of or traffic in children for any purpose or form.40 The Convention also obliges States to provide support mechanisms for child victims of any form of abuse, neglect or exploitation.41

b) Millennium Development Goals The Goals42 set for countries to achieve by 2015 provide an opportunity to address some of the underlying causes of the sad state of most populations today. Were the same to be realized, underlying causes of HIV/AIDS and human trafficking. These include issues of poverty, gender inequality, HIV and AIDS, universal education among others. c) Other Standards

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Various goals, resolutions and declarations have been adopted by states to deal with HIV and AIDS with a view to reducing its impacts and reversing its spread by among others enhancing universal access to HIV prevention, treatment, care and support. These include the UN Security Council Resolution 1308 of 2000,43 the Declaration on Commitment on HIV/AIDS of 2001 and the Political Declaration on HIV and AIDS of 2006.

5.0 Integrating Interventions

5.1 Enhancing Legal and Institutional Protection

The Government of Kenya needs to demonstrate its willingness to protect the vulnerable members of the society, a large percentage of whom include children. HIV/AIDS and trafficking make children more vulnerable. There is need for laws that not only address the offences of child trafficking, but also protection for victims of trafficking and preventative measures to counter the vice. Further, it is the responsibility of the government to ensure that budgetary commitments take into account a comprehensive social protection framework to mitigate impacts of HIV/AIDS on children and address poverty among high risk groups. The government must therefore progressively implement the already existing laws and in addition complement national obligations with international obligations such as realizing the standards set forth under for instance the UNCRC and the MDGs.

5.2 Addressing Vulnerability at Source

There is need for the government and other stakeholders to devise effective mitigation interventions so as reduce the devastating impact HIV/AIDS and poverty among the affected and infected households. Focus should not only be on protection but prevention and addressing the factors that render children vulnerable to HIV/AIDS and trafficking. The policy and institutional framework should address vulnerability factors such as unemployment, food insecurity, HIV/AIDS, poverty and political instability among others.

5.3 Child Trafficking and HIV/AIDS: A Human Rights Approach

A human rights approach requires that policy and programming move beyond the reactionary approach to address the structural factors that facilitate and perpetuate a problem. Proactive measures for governments to take include the implementation of awareness creating campaigns, directing of resources to child protection, education and anti-poverty measures, while ensuring that the communities are involved in the entire processes. Where economic and
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social security is addressed at the family level, children are removed from vulnerable positions that expose them to abuse and exploitation.

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5.4 The Gender Dimension

The gender-dimension of impact of HIV/AIDS, poverty, trafficking persons, and conflicts needs to be addressed. Alive to the dual vulnerabilities of women and children to these problems, there is need for a gender-focused approach in interventions. International instruments impose a duty upon state to promote gender equality as effective ways to combat poverty, hunger and disease, and as necessary means to stimulate development that is truly sustainable which includes elimination of gender inequality in primary and secondary education.44 This would be crucial in the mitigation of vulnerabilities that make women and children particularly at risk.

Alive to the dual vulnerabilities of women and children to trafficking and HIV in Kenya, there is need for a gender-focused approach in interventions

5.5 Mainstreaming interventions

There is need to strengthen inter-sectoral collaboration in the prevention and mitigation of the impact of HIV/AIDS. This calls for mainstreaming of impacts of HIV/AIDS, including socioeconomic impacts in addressing other child protection concerns. This will help minimize intersecting risks through integrated approaches. Reliable data on both HIV/AIDS and child trafficking is crucial to this end.

6.0 Conclusion
The impact of HIV/AIDS has been phenomenal and the issue cannot be ignored from the developmental agenda if other related problems have to be addressed. It is therefore important to investigate the nexus between the two issues so as to support interventions from an informed perspective supported by reliable information and data. Integrated efforts will ensure collaborations among concerned stakeholders thereby reduce duplicated roles and preserve resources for bigger impacts.

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Endnotes
1 Bill Rau, Consultant in HIV/AIDS and Development, in Intersecting Risks: HIV/AIDS and Child Labour (A Working Paper), International Labour Office, Geneva, June 2002

The , UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Child, also known as the Palermo Protocol, to the UN Convention Against Transnational Organized Crime.
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Several studies attest to this fact including, the United States Department of States Trafficking in Persons Report, which is produced every year, The CRADLE- The Children Foundation, Grand Illusion, Shattered Dreams- Report on the Status of Human Trafficking in Kenya, 2006, IOM, Human Trafficking in Eastern Africa, Research Assessment and Baseline Information in Kenya, Uganda, Tanzania, and Burundi, November 2007 among other studies. ILO, 2006; United States Department of State, 2006 United States Department of State, 2006 IOM, 2001

ILO/IPEC, 2002 in Every Child Counts, New Global Estimates on Child Labour, ILO, Geneva, 2002, p. 27 indicates that child victims of trafficking are estimated at 1.2 million as of that period. United States Department of State, Trafficking in Persons Report, June 2004 UNICEF, 2006, Report on Child Sex Tourism in Kenya

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UNICEF and International Parliamentary Union, Combating Child Trafficking: A Handbook for Parliamentarians, 2005.
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Global Report on HIV, UNAIDS, 2008 Estimate by Government of Kenya, Economic Survey 2004 Nairobi: Central Bureau of Statistics, 2004 p8 UNAIDS: 2008 Report on the Global AIDS Epidemic, Geneva, 2008 Republic of Kenya, National Development Plan, 2002-2008, GOK, Nairobi: 2002

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The CRADLE- The Children Foundation, Grand Illusion, Shattered Dreams- Report on the Status of Human Trafficking in Kenya, 2006, pg. iii.
15 16 UNICEF, GoK, et al, The Extent and Effect of Sex Tourism and Sexual Exploitation of Children on the Kenyan Coast, 2006. Child sex tourism is highly lucrative and drives the informal and the commercial sex trade. The disparity between a familys capacity to generate goods and income and what can be earned in sex work feeds the domestic culture which encourages children to seek out tourists Average prices paid by tourists in each age category: <12 yrs. - 1,000-2000KSH, 12-16 years - 1,000 -2000Ksh and 16-18 years - 2000 5,000Ksh. While the daily rate of casual labour for a child is between KSh 80 -120

UNAIDS, 2008 Report on the Global Aids Epidemic, Addressing Societal Causes of HIV Risk and Vulnerability, page 88
17 18

NACC, Socio Economic Impact of HIV/AIDS

19 IOM, Human Trafficking in Eastern Africa, Research Assessment and Baseline Information in Kenya, Uganda, Tanzania, and Burundi, November 2007, pg. 11

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According to the annual Case and Media Trends Reports published by The CRADLE on sexual abuse against children, children are sexually abused by people known to them. These include relatives (fathers, uncles, grandparents, cousins e.t.c.), neighbours, teachers and police officers among others.
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Get data on HIV/AIDS prevalence in Kenya Sergio Pinheiro, United Nations Study on Violence Against Child, UN, Geneva, 2006

ECPAT International, Linkages between HIV/AIDS and the Commercial Sexual Exploitation of Children in Africa. Bangkok. 2006 UNDP, Human Trafficking and HIV-UNDP See UNDP, Human Development Index, @ www.hrd.undp.org The Daily Nation February 8, 2008 at page 2

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According to www.worldaudit.org 2007 rankings, Kenya was ranked No. 122 and 106 on the corruption and democracy indices respectively. See the National Aids Control Council and the UNAIDS. Section 13, Children Act Section 254 of the Penal Code Section 255 of the Penal Code Section 260 of the penal Code Section 261 Section 264 Section 265 Section 266 By a Presidential Order in Legal Notice No. 170 of 26th September 1999 Act No 14 of 2006 Article 19 Article 35 UNCRC Article 39

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The Millennium Development Goals are eight as follows: End Poverty and Hunger, Universal Education, Gender Equality, Combat HIV and AIDS, Child Health, Maternal Health, Environmental Sustainability and Global Partnership
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For the first time, the UN Security Council had debated on a health issue. The Resolution brings into focus the impact of HIV and AIDS on social stability and emergency situations among others.

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44

Millennium Development Goals, especially Goals 1, 2, 3 and 4.

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