CHAPTER 08:09
ANTI-HUMAN TRAFFICKING
ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
PART II
Establishment of Human Trafficking (Prohibition) Committee
3. Human Trafficking (Prohibition) Committee
4. Membership of Committee
5. Powers and functions of Committee
6. Directions by Minister
7. Meetings of Committee
8. Appointment of Secretary to the Committee
PART III
Prohibition of Trafficking in Persons
9. Trafficking in persons
9A. Severe forms of trafficking in persons
10. Acts that promote child trafficking
11. Promotion of trafficking in persons
12. Use of trafficked persons
12A. Smuggling of persons
12B. Attempts
PART IV
Identification and Protection of Victims of Trafficking
13. Reporting and referral of child victim of trafficking in persons
14. Reporting and referral of adult victim of trafficking in persons
15. Support and protection of victims of trafficking in persons
PART V
Centres for Victims
16. Establishment of centres for victims
17. Minimum norms and standards
18. Programme offered by centre for child victims
19. Programme offered by centre for adult victims
PART VI
Trial of offenders and remedies for victims of trafficking in Persons
20. Victim’s right to privacy
21. Victim impact statement
22. Restitution
22A. Corporate liability
23. Victim’s immunity from prosecution
24. Trafficked person exempt from paying in civil suits
25. Confiscation and forfeiture of proceeds of crime
26. Repatriation of trafficked persons
PART VII
Victims of Trafficking Fund
27. Establishment of Victims of Trafficking Fund
28. Payments into and out of Fund
29. Accounts and audit
PART VIII
Miscellaneous provisions
30. Extra-territorial jurisdiction
31. Sentencing
32. Legitimacy and validity of documents
33. Regulations
Act 32, 2014,
S.I. 141, 2014,
Act 13, 2018,
Act 2, 2024,
S.I. 11, 2024.
An Act to give effect to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons; to provide for the prohibition, prevention and combating of human trafficking, to provide for measures to protect and assist victims of trafficking in persons and other matters incidental thereto.
[Date of Commencement: 1st January, 2015]
PART I
Preliminary (ss 1-2)
This Act may be cited as the Anti-Human Trafficking Act.
(1) In this Act, unless the context otherwise requires—
“child” has the meaning assigned to it under the Children’s Act (Cap. 28:04);
“centre for victims” means a centre for victims referred to in section 16;
“commercial sex act” means any sex act on account of which anything of value is given to or received by any person;
[2 of 2024, s. 2(c).]
“Committee” means the Human Trafficking (Prohibition) Committee established under section 3;
“consent” in relation to a person means that the person agrees by choice, and has the freedom and capacity to make that choice;
“company” has the meaning assigned to it under the Companies Act;
[2 of 2024, s. 2(c).]
“exploitation” includes but is not limited to—
(a) keeping a person in a state of slavery;
(b) subjecting a person to practices similar to slavery;
(c) involuntary servitude;
(d) forcible or fraudulent use of any human being for removal of organs or body parts;
(e) forcible or fraudulent use of any human being to take part in armed conflict;
(f) forced labour;
(g) child labour;
(h) sexual exploitation the exploitation of the prostitution of another person or use in illicit or criminal activities, including trafficking or the production of drugs;
[2 of 2024, s. 2(a).]
(i) child marriage;
(j) forced marriage;
(k) use of a person in illegal activities;
[13 of 2018, s. 2(b).]
(l) debt bondage;
[13 of 2018, s. 2(b).]
(m) human sacrifice; or
[13 of 2018, s. 2(b).]
(n) harmful rituals or practices;
[13 of 2018, s. 2(b).]
“financial or other material benefit” includes any type of financial or non-financial inducement, payment, bribe, reward, advantage or service;
[13 of 2018, s. 2(a).]
“forced labour” has the same meaning assigned to it under the Employment Act and includes exploitative labour;
[2 of 2024, s. 2(b).]
“fraudulent travel documents” means a passport or other document of identity that—
(a) has been made or altered in a material way by an unauthorised person;
(b) has been issued or obtained through misrepresentation, corruption, duress or in any unlawful manner; and
(c) is used by a person other than the rightful holder;
[13 of 2018, s. 2(a).]
“Fund” means the Victims of Trafficking Fund established under section 27;
“involuntary servitude” includes a condition of servitude induced by means of—
(a) any scheme, plan or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer harm or physical restraint; or
(b) the abuse or threatened abuse of the legal process;
[2 of 2024, s. 2(c).]
“place of safety” has the same meaning assigned to it under the Children’s Act;
“pornography” means any representation, through a publication, exhibition, cinematography, indecent show, information technology or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual purposes;
“proceeds of crime” has the same meaning assigned to it under the Proceeds of Serious Crime Act (Cap. 08:03);
“Protocol” means the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime; done at New York on 15 November 2000, or as last revised or amended;
“Registrar” means Registrar of the court in terms of the High Court Act and the Court of Appeal Act, whichever is applicable;
[2 of 2024, s. 2(c).]
“sexual exploitation” means the commission of any sexual offence in terms of the Penal Code (Cap. 08:01) or any offence of a sexual nature in any other law against a victim of trafficking, and includes forcing a victim of trafficking to participate in the production of an obscene publication or obscene display including pornographic material or the performance of any act of a sexual nature;
“slavery” is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised;
“society” has the meaning assigned to it under the Societies Act;
[2 of 2024, s. 2(c).]
“trafficking in persons” has the meaning assigned to it in section 9; and
“victim of trafficking in persons” includes a person who is being or has been trafficked as defined in section 9.
PART II
Establishment of Human Trafficking (Prohibition) Committee (ss 3-8)
3. Human Trafficking (Prohibition) Committee
(1) There is hereby established a committee to be known as the Human Trafficking (Prohibition) Committee, in this Act referred to as “the Committee”.
(2) The Committee shall be under the general supervision of the Minister.
(1) The Committee shall consist of the following members appointed by the Minister—
(a) the Permanent Secretary of the Ministry of Defence, Justice and Security;
(b) the Permanent Secretary of the Ministry of Labour and Home Affairs or his or her nominee;
(c) the Commissioner of Police or his or her nominee;
(d) a nominee of Intelligence and Security;
(e) a nominee of Immigration and Citizenship;
(f) a nominee of the Attorney-General’s Chambers;
(g) the Director of Gender Affairs;
(h) a nominee from the Ministry of Local Government and Rural Development;
(i) a nominee from the Ministry of Transport and Communications;
(j) the Commissioner of Labour;
(k) three senior public officers who have the skill, experience and competence in social welfare, gender, children and health issues or any other skills relevant to the functions of the Committee under this Act;
(l) a representative from a non-governmental organisation;
[2 of 2024, s. 3(a).]
(m) a nominee from the Ministry responsible for health;
[2 of 2024, s. 3(b).]
(n) a nominee from the Ministry responsible for environment and tourism;
[2 of 2024, s. 3(b).]
(o) a representative from the academia;
[2 of 2024, s. 3(b).]
(p) a representative from the media;
[2 of 2024, s. 3(b).]
(q) a representative from the private sector; and
[2 of 2024, s. 3(b).]
(r) a representative from the civil society dealing with matters concerning women.
[2 of 2024, s. 3(b).]
(2) The Permanent Secretary from the Ministry of Defence, Justice and Security shall be the Chairperson of the Committee and the members shall elect a member from among their number to be the Vice-Chairperson.
5. Powers and functions of Committee
The Committee shall—
(a) determine policies for giving effect to the objects and purposes of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons and this Act;
(b) make recommendations to the Minister concerning the policy on prevention and suppression of trafficking in persons;
(c) make recommendations to the Minister on the effective implementation of this Act;
(d) lay down strategies and measures for the prevention and suppression of trafficking in person;
(e) monitor the implementation of international obligations, including cooperating and coordinating with foreign bodies in relation to the prevention and suppression of trafficking in persons;
(f) direct and supervise the arrangements of study or research projects and the development of an integrated data base system for the benefit of prevention and suppression of trafficking in persons;
(g) issue rules relating to the assistance to non-governmental organisations to carry out activities with a view to prevention and suppression of trafficking in persons;
(h) manage, in consultation with the Permanent Secretary in the ministry responsible for finance, the receipt, payment, keeping, fund raising and the management of the Fund; and
(i) perform any other acts as directed by the Minister.
(1) The Minister may give the Committee written directions, of a general or specific nature, regarding the exercise of its powers and the performance of its functions, which directions shall not be inconsistent with this Act.
(2) The Committee shall give effect to the Minister’s directions given in accordance with subsection (1).
(1) Subject to the provisions of this Act, the Committee shall regulate its own proceedings.
(2) The Committee shall meet for the transaction of its business at least four times in a year.
(3) The Chairperson may, upon giving notice in writing of not less than days, call a meeting of the Committee, provided that if the urgency of any particular matter does not permit the giving of such notice, call a special meeting upon giving of a shorter notice.
(4) The quorum at any meeting of the Committee shall be a simple majority of the members of the Committee.
(5) There shall preside at any meeting of the Committee—
(a) the Chairperson;
(b) in the absence of the Chairperson, the Vice-Chairperson; or
(c) in the absence of the Chairperson and Vice-Chairperson, such member as the members present may elect from amongst themselves for the purpose of that meeting.
(6) A decision of the Committee on any question shall be by the majority of the members present and voting at the meeting and, in the event of an equality of votes, the member presiding shall have a casting vote in addition to that person’s deliberative vote.
8. Appointment of Secretary to Committee
(1) The Deputy Permanent Secretary in the Ministry of Defence, Justice and Security shall be the Secretary to the Committee.
(2) The Secretary shall attend all the meetings of the Committee but shall have no right to vote, and shall be responsible for the accurate and complete recording of the Committee’s proceedings and decisions.
(3) The Secretary shall be accountable to the Chairperson and to the Committee for his or her functions and responsibilities in the Committee.
PART III
Prohibition of Trafficking of Persons (ss 9-12)
(1) Any person who, for the purpose of exploiting another person, recruits, transports, transfers, harbours or receives another person by—
(a) threat or use of force or other forms of coercion;
(b) abduction;
(c) fraud or deception;
(d) abuse of power or a position of vulnerability; or
(e) giving or receiving payments or benefits to achieve the consent of a person having control over another person,
commits an offence of trafficking in persons and is liable to imprisonment, without the option of a fine and without the suspension of any part thereof, for a term not less than 15 years but not more than 30 years, and to a fine of not less than P500 000 or in default thereof to an additional term of imprisonment of not less than three years but not more than five years.
[2 of 2024, s. 4(a).]
(2) If in any charge under this Part it is alleged that trafficking in persons, as defined in this section, occurred—
(a) evidence that an offence of trafficking has been committed shall be sufficient proof that trafficking was carried out with the knowledge of the person charged, unless the contrary is proved; and
(b) the burden of proving any fact which would be a defence to a charge of contravening any provision of this Part shall lie upon the person charged.
[2 of 2024, s. 4(b).]
(3) The consent of a victim of trafficking in persons to the intended exploitation shall not be relevant where any of the means set out in subsection (1) have been used.
(4) The recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of exploitation shall be considered “trafficking in persons” even if it does not involve any of the means set out in subsection (1).
(5) Any person who, being a director, promoter, an agent or officer of a corporation, company or society, and through the means set out in subsection (1), commits an offence of trafficking in persons is liable to the same penalty as provided for in subsection (1):
Provided that where an offence under this Act is committed by a body corporate—
(i) the body corporate shall be liable to the same fine under subsection (1),
(ii) with the consent or connivance of, or is proved to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate or any person who purported to act in such capacity, such director, manager, secretary, officer or person shall be liable to the same penalty under subsection (1), and
(iii) the director, promoter, agent or officer of such corporation, company or society may be liable thereon jointly, or jointly and severally.
[2 of 2024, s. 4(c).]
9A. Severe forms of trafficking in persons
(1) Where, for the purpose of trafficking in persons or in the course of trafficking in persons, a person—
(a) removes an organ from the victim’s body;
(b) causes serious injury or death of the victim or another person, including death as a result of suicide;
(c) coerces or deceives the victim to fall pregnant, or thereafter takes the child away;
(d) subjects the victim to slavery or forced labour;
(e) instigates the victim to commit an act of prostitution;
(f) instigates the victim to take part in an obscene publication or obscene display;
(g) commits a sexual offence against the victim;
(h) uses force, coercion or fraud or the threat of violence;
(i) uses drugs, any habit-forming drugs or medication; or
(j) commits an offence of trafficking in persons as part of the activity of an organised criminal group,
the penalty shall be imprisonment, without the suspension of any part thereof, for not less than 30 years or a maximum term of life imprisonment, and to a fine of not less than P1 000 000 or in default thereof to an additional term of imprisonment of not less than five years but not more than seven years.
[2 of 2024, s. 5.]
(2) Severe forms of trafficking in persons shall, for purposes of subsection (1), include—
(a) trafficking of a child, person with a disability or victim who is particularly vulnerable, irrespective of the means of trafficking;
(b) trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform the commercial sex is a child;
(c) the recruitment, harboring, transportation, provision, or obtaining of a person for labour or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, debt bondage, or slavery; and
(d) trafficking by a person who has been previously convicted for the same or similar offences.
[2 of 2024, s. 5.]
(3) Where, upon the trial of a person for an offence in terms of this section, the court considers that the offence of a severe form of trafficking has not been proved, but is satisfied that the person is guilty of an offence in terms of section 9, the court shall find the person guilty of the offence and convict and sentence such person accordingly.
[2 of 2024, s. 5.]
(4) Any sentence imposed in respect of an offence under this section shall be consecutive to and not concurrent with any other sentence imposed on the same accused person, and no sentence or any part of any sentence imposed in respect of an offence under this section shall be suspended.
[2 of 2024, s. 5.]
10. Acts that promote child trafficking
(1) A person who for the purpose of trafficking in persons—
(a) adopts a child or offers a child for adoption;
(b) fosters a child or offers a child for fostering; or
(c) offers guardianship to a child or offers a child for guardianship,
commits an offence and is liable to the same penalty as if he or she has committed an offence of a severe form of trafficking in persons under section 9A.
[2 of 2024, s. 6(a).]
(2) A person who initiates or attempts to initiate adoption, fostering or guardianship proceedings for the purpose of subsection (1) commits an offence and is liable to the same penalty as if he or she has committed an offence of a severe form of trafficking in persons under section 9A.
[2 of 2024, s. 6(b).]
11. Promotion of trafficking in persons
(1) A person who—
(a) knowingly leases, or being the occupier, permits to be used any house, building, or other premises for the purpose of promoting trafficking in persons;
(b) produces, publishes, advertises, broadcasts or distributes, exports or imports, any material for purposes of promoting trafficking in persons;
(c) manages, runs or finances any job recruitment agency for the purposes of promoting trafficking in persons; or
(d) by any other means promotes trafficking in persons, commits an offence and is liable to a fine not exceeding P50 000, or to imprisonment for a term not exceeding 10 years, or to both, and on a subsequent conviction, to a fine not exceeding P400 000 or to imprisonment for a term not exceeding 20 years.
(2) A person who misrepresents any fact for purposes of facilitating the acquisition of travel documents or fraudulently obtains any document from Government agencies, in order to assist in the commission of an offence of trafficking in persons commits an offence and is liable to a fine not exceeding P50 000, or to imprisonment for a term not exceeding 10 years or, to both, and on a subsequent conviction, to a fine not exceeding P400 000 or to imprisonment for a term not exceeding 20 years.
(3) A person who facilitates, aids or abets the exit or entry of persons from or to the country at international and local airports, territorial boundaries and seaports for the purpose of promoting trafficking in persons commits an offence and is liable to a fine not exceeding P100 000 or to imprisonment for a term not exceeding 15 years, or to both.
(4) A person who—
(a) confiscates, conceals, alters, destroys or in any other manner deals with any identification or travel documents, of another person in furtherance of trafficking in persons or in order to prevent that other person from leaving the country or seeking redress from the Government or appropriate agencies; or
(b) confiscates, conceals, destroys or in any other manner deals with personal effects of another person or threatens to do so in furtherance of trafficking in persons or in order to prevent that other person from leaving the country or seeking redress from the Government or appropriate agencies,
commits an offence and is liable to a fine not exceeding P100 000 or to imprisonment for a term not exceeding 15 years, or to both.
A person who buys or engages the services of a trafficked person commits an offence and is liable to the same penalty as if he or she has committed an offence of trafficking in persons under section 9(1).
[2 of 2024, s. 7.]
(1) Any person who smuggles another person into or out of Botswana, whether or not the smuggling is to obtain, directly or indirectly, a financial or other material benefit commits an offence of smuggling and is liable to a fine not exceeding P200 000 or to imprisonment for a term not exceeding 15 years or to both.
(2) Any person who, during the commission of the offence under subsection (1)—
(a) subjects the person being smuggled to torture, inhuman and degrading treatment, including for exploitation; or
(b) endangers or is likely to endanger the life or safety of the person being smuggled,
commits an offence and is liable to the same penalty as if he or she has committed an offence of trafficking in persons in section 9(1).
[2 of 2024, s. 8(a).]
(3) Subject to subsection (1), where the smuggling results in the death of the person being smuggled the offender shall be liable to the same penalty as if he or she has committed an offence of a severe form of trafficking in persons under section 9A.
[2 of 2024, s. 8(b).]
(4) Any person who procures, provides or possesses a fraudulent travel document for purposes of facilitating smuggling commits an offence and is liable to a fine not exceeding P100 000 or to imprisonment for a term not exceeding 10 years, or to both.
(5) The consent of a victim of smuggling shall not be relevant where any of the means set out in subsection (1) have been used.
[13 of 2018, s. 3.]
Any person who attempts to commit any offence under this Act, or solicits or incites or endeavours to persuade another person to commit an offence, or aids or abets or does any act preparatory to the commission of an offence under this Act, commits an offence and is liable to the same penalty, and to be proceeded against in the same manner, as if he or she had committed the offence.
[2 of 2024, s. 9.]
PART IV
Identification and Protection of Victims of Trafficking (ss 13-15)
13. Reporting and referral of child victim of trafficking in persons
(1) Notwithstanding any other law prohibiting the disclosure of personal information, any person who, on reasonable grounds, suspects that a child is a victim of trafficking in persons shall immediately report that suspicion to a social worker or a police officer for investigation.
(2) A person referred to in subsection (1)—
(a) shall provide reasons for that suspicion to the social worker or police officer;
(b) who makes the report in good faith, is not liable to civil action on the basis of the report; and
(c) is entitled to have his or her identity kept confidential if his or her safety is at risk as a result of the report, unless the interests of justice require otherwise.
(3) A social worker or police officer to whom a report has been made in terms of subsection (1) or a social worker or police officer who, on reasonable grounds, suspects that a child is a victim of trafficking in persons, shall within 24 hours, refer that child to a place of safety in terms of section 44 of the Children’s Act or to a centre for victims pending a police investigation into the matter.
(4) A person who fails to comply with subsection (1) commits an offence and is liable to a fine not exceeding P5 000 or to imprisonment for a term not exceeding 2 years, or to both.
14. Reporting and referral of adult victim of trafficking in persons
(1) Any person, who on reasonable grounds suspects that an adult person is a victim of trafficking, shall report that suspicion to a police officer for investigation.
(2) A person referred to in subsection (1)—
(a) shall provide reasons for that suspicion to a police officer;
(b) shall not be liable to action or demand on the basis of the report; and
(c) shall be entitled to have his or her identity kept confidential if his or her safety is at risk as a result of making the report, unless the interests of justice require otherwise.
(3) A police officer to whom a report has been made in terms of subsection (1) or a police officer who, on reasonable grounds, suspects that an adult person is a victim of trafficking shall, within 24 hours, refer that person to a centre for victims, pending a police investigation into the matter.
(4) A centre for victims to which a referral has been made in terms of subsection (3) shall—
(a) within 24 hours, where necessary with the assistance of the police, ensure the safety of the person concerned if the person’s safety is at risk; and
(b) without delay, in the prescribed manner, cause an assessment to be carried on the person concerned, to determine—
(i) the immediate needs of the victim, and
(ii) the long term needs of the victim.
(5) If, after the police investigation referred to in subsection (3), it is found that the person concerned is a victim of trafficking in persons—
(a) a certificate, as prescribed, shall be issued to him or her, certifying him or her to be a victim of trafficking in persons; and
(b) he or she shall be informed of the remedies available to him or her under Part V.
(6) A person who fails to comply with subsection (1) commits an offence and is liable to a fine not exceeding P5 000 or to imprisonment for a term not exceeding 2 years, or to both.
15. Support and protection of victims of trafficking in persons
(1) The Committee shall, in consultation with the Minister formulate plans for the provision of appropriate services for victims of trafficking in persons and children accompanying the victims, including—
(a) return to Botswana or leaving Botswana;
(b) resettlement;
(c) re-integration;
(d) appropriate shelter and other basic needs;
(e) psychosocial support;
(f) appropriate medical assistance;
(g) legal assistance or legal information, including information on the relevant judicial and administrative proceedings; or
(h) any other necessary assistance that a victim of trafficking in persons may require.
(2) When developing the plans under subsection (1), the Committee shall consider the age, gender, and the special needs of children and persons with disabilities and the personal circumstances of each victim of trafficking in persons.
(3) Notwithstanding the provisions of any other law, victims of trafficking in persons shall be eligible to work for gain for the duration of their necessary presence in Botswana.
(4) Notwithstanding the provisions of any other law, the victims of trafficking in persons shall be permitted to remain in Botswana until legal proceedings are concluded and may by an order of the court in such proceedings, be allowed to bring their children.
(5) In all dealings with a trafficked person, any Government officer dealing with the victim of trafficking in persons or any other person who by virtue of duty is dealing with the victim of trafficking in persons shall ensure that all communication with that person is in a language that the person understands.
(6) The support services provided under this section shall be available to victims of trafficking in persons regardless of their nationality.
PART V
Centres for Victims (ss 16-19)
16. Establishment of centres for victims
The Minister responsible for social welfare shall from money appropriated by Parliament for that purpose—
(a) establish and operate centres for victims; and
(b) accredit non-governmental organisations as centres for victims.
17. Minimum norms and standards
A centre for victims shall comply with the norms and standards as the Minister may, by statutory instrument, prescribe.
18. Programme offered by centre for child victims
A centre for child victims—
(a) shall secure the physical safety of a child victim;
(b) shall provide temporary basic material support for the care of a child victim;
(c) shall offer a programme for—
(i) the provision of counselling to child victims; and
(ii) the provision of rehabilitation services to child victims; and
(d) shall, in co-operation with the Ministry responsible for education, offer a programme aimed at the provision of education to child victims.
19. Programme offered by centre for adult victims
(1) A centre for adult victims—
(a) shall secure the safety of adult victims at risk of retaliation;
(b) shall offer a programme aimed at—
(i) the provision of counselling to adult victims;
(ii) the provision of rehabilitation services to adult victims; and
(iii) the re-integration of adult victims into their families and communities;
(c) may, in co-operation with the Ministry responsible for education, offer a programme aimed at the provision of education to adult victims; and
(d) may, in co-operation with the Ministry responsible for labour, offer a programme aimed at the provision of skills development training to adult victims.
(2) A centre for adult victims that provides accommodation to an adult victim who has a child in his or her care shall offer a programme aimed at the reception, care and development of such a child.
(3) Subject to subsection (4), a child referred to in subsection (2) may be cared for at any other premises only with the explicit consent of the adult victim.
(4) A child referred to in subsection (2) shall be referred to a designated social worker for investigation to determine whether the child is in need of care and protection.
PART VI
Trial of offenders and remedies for victims of trafficking in Persons (ss 20-26)
(1) A law enforcement officer or the court and any other person involved in the investigation or trial of an offender under this Act, shall throughout the investigation or trial observe the right to privacy of the victim of trafficking in persons and of any witness.
(2) The court dealing with the trial of an offence under this Act, may after considering all circumstances and for the best interest of the parties, order that the trial be held in camera.
(3) A person who discloses the name and personal circumstances of the victim of trafficking in persons or any other information tending to establish the identity of a victim of trafficking in persons and the circumstances of trafficking in persons commits an offence and is liable to imprisonment for a term not less than 15 years and to a fine of not less than P20 000 but not exceeding P50 000.
[2 of 2024, s. 10.]
(4) Where a trial is conducted in camera, any person who publishes the proceedings of the court commits an offence and is liable to a fine not exceeding P100 000 or to imprisonment for a term not exceeding 15 years, or to both.
The Director of Public Prosecutions may, in criminal proceedings relating to a trial of an offence under this Act, adduce evidence relating to the circumstances surrounding the commission of an offence and the impact of the offence under this Act upon a victim of trafficking in persons—
(a) in order to prove whether an offence was committed under this Act—
(i) towards or in connection with the person concerned, or
(ii) under coercive circumstances referred to in section 9;
(b) for purposes of seeking the imposition by the court of an appropriate sentence that relates to the extent of the harm suffered by the victim of trafficking in persons.
Where a person is convicted of an offence under this Act, the court may, in addition to any other punishment prescribed under this Act, order the person to make restitution or compensate the victim for—
(a) the costs of any medical or psychological treatment;
(b) the costs of necessary transportation, accommodation and other living expenses; or
(c) any other relief that the court may consider just.
(1) Where a corporation, company or society is convicted of an offence under this Act, the Registrar shall, forthwith, notify the public authority which licensed or registered the corporation, company or society of the conviction.
[2 of 2024, s. 11.]
(2) The public authority shall, upon receipt of the notification under subsection (1), review the licence or registration, and may where necessary revoke or cancel the licence or registration of such corporation, company or society.
[2 of 2024, s. 11.]
23. Victim’s immunity from prosecution
Notwithstanding the provisions of any other law, a victim of trafficking in persons shall not be criminally liable for any offence related to being in Botswana illegally or for any criminal act that was a direct result of being trafficked.
24. Trafficked person exempt from paying in civil suits
Where a victim of a trafficking in persons offence institutes a civil action for damages, the victim of trafficking persons shall be exempt from the payment of court fees.
25. Confiscation and forfeiture of proceeds of crime
(1) Notwithstanding the Proceeds and Instruments of Crime Act and in addition to any other penalty prescribed for an offence under this Act and under any other written law, the court may order the confiscation and forfeiture, of all the proceeds of crime under this Act, in favour of the Fund.
(2) All awards for damages shall be taken from the personal and separate property of the person who committed the offence and where the property is insufficient, the balance shall be taken from the Fund.
(3) Where the proceeds of crime are destroyed, diminished in value or otherwise rendered worthless by any act or omission of the person who committed the offence, directly or indirectly, or have been concealed, removed, converted or transferred to prevent them from being found or to avoid confiscation or forfeiture, the person who committed the offence shall, in addition to any other penalty be ordered to pay the amount equal to the value of the proceeds of crime.
26. Repatriation of trafficked persons
(1) Subject to this Act the Minister responsible for immigration may arrange for the repatriation of the victims of trafficking in persons to their place of origin.
(2) Where a Botswana victim of trafficking in persons across the borders does not have proper documentation, the Government shall issue the necessary travel documents to enable the victim of trafficking in persons to travel and re-enter the country.
(3) Where, in the opinion of the Minister responsible for immigration, the repatriation of a victim of trafficking in persons from Botswana is likely to or would expose the trafficked person to danger, the Minister may permit the trafficked person to continue staying in Botswana for such period as the Minister may consider fit.
PART VII
Victims of Trafficking Fund (ss 27-29)
27. Establishment of Victims of Trafficking Fund
(1) There is hereby established a Victims of Trafficking Fund in this Act referred to as “the Fund”, the object of which is to provide assistance to victims of trafficking in persons.
(2) The Chairperson shall be the public officer responsible for the administration of the Fund.
28. Payments into and out of the Fund
(1) The sources of the Fund shall be—
(a) such moneys as may be appropriated by the National Assembly for the purposes of the Fund;
(b) any proceeds of crime confiscated and forfeited proceeds of crime under section 21; or
(c) income generated by investments made by the Committee; and
(d) any donation received by the Committee for purposes of the Fund.
(2) Without limiting the generality of section 23(2), the Committee may make payments out of the Fund for—
(a) the expenses arising out of assistance to the victims of trafficking in persons in the manner referred to in section 15;
(b) the balance of damages under section 21(2); and
(c) such other purposes as may be required for purposes of this Act.
(1) The Chairperson shall cause the—
(a) keeping and maintenance of proper records of accounts in respect of the Fund;
(b) preparation of an annual balance sheet and statement of income and expenditure in such form and manner as the Accountant-General may approve;
(c) maintenance of an account in which shall be recorded all receipts into the Fund and all disbursements from the Fund and such accounts shall be reconciled monthly with the account maintained by the Accountant-General.
(2) The balance sheet and statement of income and expenditure shall be included in the annual statement of accounts submitted by the Accountant-General to the Auditor-General in accordance with the Public Finance Management Act (Act No. 17 of 2011).
PART VIII
Miscellaneous Provisions (ss 30-33)
30. Extra-territorial jurisdiction
(1) A citizen of Botswana, or a person who permanently resides in Botswana, who commits an act outside Botswana that constitutes an offence under this Act if committed in Botswana, commits such an offence and is liable to the same penalty as if he or she has committed an offence of trafficking in persons under section 9(1).
[2 of 2024, s. 12.]
(2) Any act of trafficking referred to in Part III undertaken outside Botswana by a citizen of Botswana shall be deemed to have been undertaken at any place within Botswana.
(3) A person may not be convicted of an offence under subsection (1) if such a person has been acquitted or convicted in the country where that offence was committed.
If a person is convicted of any offence under this Act, the court that imposes the sentence shall consider, but is not limited to, the following aggravating factors—
(a) the significance of the role of the convicted person in the trafficking process;
(b) whether the offence involved serious injury or death of the victim or another person including death as a result of suicide;
(c) whether the convicted person caused the victim to become addicted to the use of a dependence-producing substance or to a life-threatening illness including HIV/AIDS;
(d) the conditions in which the victim was kept;
(e) whether the victim was held captive for any period;
(f) whether the victim suffered abuse and the physical and psychological effects the abuse had on the victim;
(g) whether the offence involved a victim who is particularly vulnerable including a pregnant woman; and
(h) whether the victim was a child or a physically or mentally handicapped person.
32. Legitimacy and validity of documents
The Director of Immigration and Citizenship shall, at the request of another State that is a party to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons or to an agreement relating to trafficking in persons, verify, within a reasonable time, the legitimacy and validity of travel or identity documents issued or purported to have been issued by the Ministry of Labour and Home Affairs and suspected of being used in the commission of an offence in terms of this Act.
The Minister may make regulations for any matter which is required or permitted to be prescribed or for the better carrying out of the provisions of this Act and without derogating from the generality of the foregoing, such regulations may prescribe—
(a) the procedure of certifying persons as victims of trafficking in persons;
(b) the criteria for accreditation of organisations to provide services to victims;
(c) norms and standards to be complied with by centres for victims;
(d) the repatriation process; and
(e) any other matter, which is necessary or expedient to prescribe in order to achieve or promote the objects of this Act.