Seychelles has long been regarded as a state that is doing relatively well on the question of combatting human trafficking. It is rated as Tier 2 on the US state department’s global assessment register, meaning that while it does not fully meet the minimum standards for the elimination of trafficking, it is making significant efforts to do so. These efforts include establishing the country’s first anti-trafficking hotline and establishing a trafficking-specific shelter.
Two recent appeal judgments, however, reveal a worrying new development in human trafficking: the use of local men as ‘drug guarantees’. These are people trafficked to stand as hostages to ensure that money owed to drug suppliers will be paid.
The first judgement is the case of Samson v R in which Vincent Samson appealed against his conviction on two counts: aggravated trafficking and trafficking.
The story behind the appeal judgment was that Samson had ‘recruited, transported or transferred’ Marlon Bertin from Seychelles to Iran or Pakistan where Bertin’s function was to be a ‘drug guarantee’.
Translated, this means that he became a physical hostage for the payment of money for drugs provided to dealers in Seychelles by exporters in Iran or Pakistan. During the legal process it became clear that Bertin’s family fears for his safety and that he may no longer even be alive.
Considering the appeal, the apex court ruled that while Samson had been found guilty of ‘aggravated trafficking’ (as well as of the separate crime of ‘trafficking’), there was in fact no such separate crime as ‘aggravated trafficking’ in Seychelles.
Instead, the law states that an offence of trafficking a person is ‘deemed to be aggravated’ in the circumstances set out in a particular section of the law, and where this happens, there is provision for an ‘enhanced sentence’.
Though the conviction and sentence in relation to the offence of ‘aggravated trafficking’ was therefore set aside, the court found that Samson’s conviction for trafficking stands.
The court further found that Samson had lied in much of his evidence about what happened to Bertin, and that Samson had organised for Bertin to get a passport and a plane ticket and had even taken him to the airport when he left Seychelles to carry out his function as ‘drug guarantee’.
In addition, even if, as Samson’s legal team argued, Bertin had ‘consented to go’ as a guarantor of drugs, this would not be a defence under the Prohibition of Trafficking in Persons Act.
Further, the ‘use’ made by Samson of Bertin’s vulnerability – he was a drug addict – also meant his actions fell under the trafficking legislation. The court held “…deception and making use of another person’s vulnerability can be inferred from facts and the circumstances of the case, especially where the victim of trafficking is dead and not available to testify in court.”
And althought there was no appeal against the 10-year sentence imposed, the court president said he would have been inclined to increase it. “Human trafficking is a crime against all human dignity. There was no respect for the life of Marlon Bertin. As a society we cannot condone such acts and the court has to impose a sentence that sends a clear message to those who have been involved or are contemplating such acts that the law will show no mercy on them.’
The second case heard by the court of appeal dealt with three Seychellois men convicted and sentenced under anti-drug laws as well as anti-trafficking legislation.
The drugs over which they were prosecuted were heroin and cannabis, imported from Iran on a dhow, in quantities not seen in Seychelles before. The accused were also involved in recruiting fellow Seychellois, Andy Bistoquet, for the purpose of being ‘transferred to Iran as a drug guarantee’.
What this meant is that, as in the Samson case, the three accused did not have the money to pay for the drugs they imported. They thus offered up Bistoquet as a kind of hostage for their subsequent payment. A first attempt to get the drugs and deliver Bistoquet failed. On the second attempt, Bistoquet was transferred to the dhow and one of those involved went on board and collected the packets of drugs before re-boarding the gang’s escape vessel.
The operation was being watched and filmed by law enforcement officials who saw the traffickers throw packages and a satellite phone into the sea. An alert was put out for Bistoquet, who had been transferred to the foreign dhow, and he was rescued with international assistance, and brought back to Seychelles.
Commenting on the case, the appeal court said courts in Seychelles had to be very concerned where drugs were brought into Seychelles and were handed over ‘in mid ocean between foreign vessels and local boats.’
The appeal court also agreed with comments of the sentencing judge who said there was a worrying trend in Seychelles whereby offenders ‘recruit, transport and then transfer young Seychellois men to foreign lands where they are held as drug guarantees.
“This amount to exploitation and [is] one of the worst forms of human trafficking.’ The appeal judges added, ‘If this trend is not nipped in the bud the consequences will be disastrous and soon we will be slipping into a modern form of slavery,” the court held.
Importantly, the court concurred with a request that the legislature amend the Prohibition of Trafficking in Persons Act (PTPA) to include provisions for the assets of an accused to be forfeit on conviction and used to pay compensation to victims of trafficking, noting, “In that respect, provision will have to be made for an order of seizure of the assets of the accused on being charged and pending conviction,” the court said. (Africanlii.org)
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