‘Harboring or transferring children not offence’: Defence of suspected Muslim student Trafficker
Abdul Malick Audrey of Senior Traditional Authority Nkaya in Balaka whom Malawi Police arrested on May 4 2013 for allegedly trafficking 26 Muslim students to Zanzibar has said that the State wrongly charged him because Immigration procedures are not part of section 79(2) of the Child Care, Protection and Justice Act.
According to section 79 (2)… child trafficking means recruitment, transaction, transfer, harbouring or receipt of a child for the purposes of exploitation.
“For the said section to be offended, the State had the obligation to allege in the charge sheet that I transferred the children for the purpose of exploitation or victimisation. The allegation of exploitation should have been the centre of the case. It was not,” Audrey, said through Mzuzu based prominent Lawyer George Kadzipatike of Jivason and Company.
Audrey also noted in his final submission to the Karonga First Grade Magistrate Court that the State indicated that he committed the offence on May 5th 2013.
“What this means is that according to them, the offence of child trafficking was committed that day in Karonga district. Did we have in Court any witness who described the manner in which the children were victimised on May 5, 2013?
“Who knew that these children were being victimised? Who was supposed to complain in this case? A passerby or the parents of the children? The answers are clear to any right thinking person,” he said.
Audrey also pointed out that under the offence of child trafficking or child abduction, parents are central to the proof of these offences.
“In this case no parent anywhere in the country lodged a complaint with the Police. Actually, one of the parents, Sheikh Mustafa Ndeleman was in the company of the children on their journey to Zanzibar.
“Two of the children even testified in Court that they had consent and full blessings of their parents. However, the overzealous Police officers say the children were trafficked. We wonder if the Court will believe the Cops or the children,” he said.
Audrey said instead of having exploitation as the essential element in the charge sheet “we have immigration procedures which are alleged to have been flouted”
He said at law there is no burden on the accused to prove anything.
“He who alleges a fact has the duty to prove it and this Court should is duty bound to avoid shifting the burden of proof to the accused. The accused does not have to prove or disprove a fact. He is innocent until the Court is satisfied beyond reasonable doubt that he committed the alleged offence,” Kadzipatike said.
However, a Passport Officer from the Immigration Department testified in Court that that there was nothing wrong with the traveling documents that the children and the suspect were in possession of.
“We do not find proof of exploitation of the children either in the contradiction between the Police and the Immigration Department about the validity of the travelling documents. We just have to point out that there is no any immigration restrictions on which region one would get their travelling documents from,” Audrey said.
Audrey then challenged that a reasonable tribunal or Court would quickly notice that Immigration procedures are not part of the elements of the offence under section 79(2).
“Even if immigration procedures were part of section 79 (2), we do not have evidence from state witnesses that this court could rely on,” he said.
Audrey said it would be ridiculous if the Court convicts him basing on the State’s argument that irregular or inadequate traveling documents do amount to victimisation or exploitation.
“What we know is that when a traveller has inadequate or irregular travelling documents… that is not his fault. All the Immigration Officials do is return him or her to correct the anomalies and not arrest or prosecute him,” he observed.
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