Visiting
Law Lecturer, University of The Gambia Member, Institute for the Advancement of
Children’s Rights
This
article aims to explore the reasons why illegal migration from The Gambia -
locally known as Taking the ‘Backway’ - is an increasingly common phenomenon
for many young Gambians. This article will firstly examine the economic and
social conditions in which many youths in The Gambia find themselves in, and
will argue that these are the driving forces behind young men and women taking
the Backway. Secondly, it will explore the negative impact that the migration
has on the individuals themselves, and also on The Gambia as a whole. Thirdly,
it will evaluate the legal measures taken to address this issue, and assess
their effectiveness. Finally, it will suggest potential avenues for improving
the laws related to illegal migration.
What
is The Backway?
Illegal
migration is a broad term - it can refer to the act of illegally entering a
state, or can refer to a situation where entry to the state is legal, but
subsequently the visa has expired and the individual has stayed beyond their
legal rights. This article will focus only on illegal migration out of The
Gambia. Illegal Migration is defined by the Institute for Migration (IOM) as
irregular migration that does not take place through the proper legal
channels. The IOM do point out however,
that the term is usually used in reference to people trafficking and smuggling.
’The
Backway’ is a common term used in The Gambia, which refers to the route taken
by Gambians in order to get to Europe. It is termed the Backway due to its
illegality, and it therefore being a back entrance into Europe. The route
broadly involves travel through Senegal, Mali, Niger or Chad, and eventually
Libya as the last stop in Africa, where migrants are then put on boats and sent
to Italy. Under the Convention Relating to the Status of Refugees (1951), and
its Optional Protocol (1967), many people leaving The Gambia cannot be classed
as refugees, so the situation does not parallel the exodus from Libya and
Syria.
Why
do youths take the Backway
Despite
being a relatively small country, in terms of population, The Gambia has had a
high amount of nationals attempting to cross from Libya to Italy. In Jan-Feb 2015 and 2016, The Gambia had one
of the highest numbers of citizens crossing the Mediterranean. As the nature of the migration is illegal, it
is difficult to obtain concrete figures on the numbers leaving The Gambia.
However, around 4% of the Gambian population now lives abroad. The Backway is
largely taken by Gambian youths, mostly men, but women are increasingly taking
the route.
The
primary factor cited as being the reason for this migration is poverty and the
lack of opportunities that are associated with it. With a youth unemployment rate of 38%, there
is little that the young can do to earn money and provide for their family. The
Gambia is ranked 172 of 187 countries in terms of HDI. Therefore, youths can feel obligated, and
some are encouraged by their families, to take the backway in order to find a
secure job in Europe. The effects of poverty and unemployment are felt most in
the provinces. Upper River Region, where Basse is located, is the country’s
poorest region, and has the biggest percentage of youths trying to leave. With the extremely hot temperatures in Basse,
combined with the poor sanitation and malnutrition, it pushes young men and
women to leave. It is hoped that once in
Europe, money will be sent back to The Gambia to support families. This sense of allegiance to the family unit
can be attributed to the more communitarian culture found in West Africa, when
compared to the relatively individualistic outlook in Europe.
Contributing
to the sense of hopelessness and desperation is the negative impacts on climate
change. These impacts disproportionately affect countries like The Gambia.
Increased desertification, for example in the Niumi Region, makes it
considerably more difficult to grow crops, leading to hunger and lack of reliable
jobs. The changing and unpredictable nature of the climate also means that
growing crops is no longer as reliable or certain. These problems will are
expected to worsen in the future due to the global apathy with regards to
tackling global warming.
What
Impact Does This Migration Have?
Negative
effects on the migrants
Those
who take the backway face great perils on their route. Many of the problems
faced by migrants occur when they arrive in the north of the continent. Many
face the threat of being kidnapped and held for ransom, or being sold into
slavery. Even more worryingly, some are arbitrarily detained and subjected to
inhuman and degrading treatment. Women are in a particularly vulnerable
position, and there have been reports of some women being sold into slavery.
Those who are lucky enough to avoid the above face greater perils when put on
boats bound for Europe. Often, the boats are overcrowded, unsafe, and do not
have enough fuel to reach their destination. The hope is therefore that coast guard,
usually from Italy, will pick up the boat floating aimlessly on the sea. Upon
arrival, life is not as is expected, and many migrants are placed in camps,
awaiting a decision by the receiving government with regards to their future.
Negative
effects on The Gambia
The
exodus of youths from The Gambia is extremely detrimental to the country as a
whole, due to the socio economic impacts. Some villages, especially those in
the poorer regions, have reached the situation where there are not many young
men left. Economically, this has detrimental impacts on the future of The
Gambia, as manual labour is of vital importance in developing the country.
The
experience is also traumatic for the families of those who have gone the back
way. If their children die or vanish, there is a tremendous amount of guilt and
sadness.
What
are the laws in place?
The
most important piece of legislation regarding the backway is The Trafficking in
Persons Act 2007. As the name suggests,
it has a broad mandate because trafficking in persons can include many
different forms of trafficking, for different reasons, and with varying natures
of victim consent.
The
National Agency Against Trafficking in Persons
The
Act was important for setting up, under Part II, The National Agency Against
Trafficking in Persons (NAATIP). Part III of the Act sets out the NAATIP’s
functions. These include, but are not limited to, S.14(b) “inform and educate
the public, including potential victims, about the causes and consequences of
trafficking”.S.14(h) “cooperate with Non-Governmental Organisations with keen
interest in the prevention and suppression of trafficking.”
Prohibitions
included in the Act
Section
28 sets out the basic prohibition for trafficking persons. The definition of
trafficking in persons involves, under S.28 (2) (a) “The recruitment of,
provision of, transfer of, harbouring of, receipt of, or trading in, persons.”.
S.28(4) states that the sentence for trafficking is liable to pay a fine of
between 50,000 Dalasi and 500,000 Dalasi, and a minimum prison sentence of 15
years, and a maximum sentence of life. S.29 (2) gives the same sentence as
above for those who act as an intermediary for trafficking. For the purposes of
this article, it is important to explore the legal meaning given to an intermediary.
An intermediary is defined under S.29 (3) (a) as a person who participates in,
or “is concerned with any aspect of trafficking”. S.29 (4) (a) defines
concerned with any aspect of trafficking as, “sends to, takes to, consents to
the taking to, or receives at, any place any other person for the purpose of
trafficking.” It is important to highlight the fact that consent of the victim
is completely irrelevant under S.38 (a) of the Act.
How
do we move forward?
This
article argues that a three-pronged approach is necessary to combat illegal
migration from The Gambia. The first prong involves prosecuting and punishing
individuals who traffic people out of the country. The second prong involves
ensuring development within The Gambia is accelerated so that there is little
desire to leave. The third prong involves educating citizens about the dangers
of the backway, and also educating them on how to succeed within The Gambia.
These prongs are a somewhat artificial distinction, and are only used for
clarity, as there are clear overlaps between education and development.
Punishment
Crimes
that span across international borders are notoriously difficult to stop. It is
likely that the head traffickers of Gambians are not within The Gambia, and
cannot be tried. For example, some Gambians may have a contact who is in Mali
or Libya - and so, cannot be tried under the terms of The Act as they may never
enter into Gambian jurisdiction. It seems that the only people who can be tried
under The Act are those who knowingly drive Gambians out of the country - such
as the drivers of the TA express. However, if one driver is imprisoned, there
will most likely be another one to replace him It therefore seems that the law
itself is not bad, but due to the nature of the crime, it may be better to use
the carrot and not the stick. This approach, very much employing the stick, and
not the carrot, requires international cooperation on the issue. The Gambia, to
its credit, has signed agreements with various West African countries, to
combat trafficking of persons.
Developing
There
seems to be a fundamental lack of faith amongst the general public, with
regards to the institutions of The Gambia. People leave because they do not
believe the public institutions work for them. What is necessary is a radical
redesign of the public institutions that ensures development works for
everyone. There needs to be efficiency, accountability and pragmatism.
Redesigning the institutions would, in theory, make staying in The Gambia more
attractive due to the development occurring. There should also be in place
development programmes that encourage Gambians to learn the skills vital for
the future development in The Gambia.
Educating
Educating
the population about the dangers of the backway is vital. The horrors of the
backway are often not reported, but most Gambians know someone who has gone the
backway.
The
need for a new law?
A
new law is necessary because the nature of the backway migration is
fundamentally different to other forms of trafficking. Failure to recognise its
uniqueness as a problem risks it becoming subsumed and lost in the wider issue
of trafficking. The new law should encompass two of the three prongs discussed
above - punishment and education. Further, the new law should establish a
specialist agency to deal with backway migration specifically. Its mandate and
composition would be similar to that of NAATIP, but its sole focus would be the
backway phenomenon.
The
new agency should be similar to the NAATIP. Its mandate should be twofold:
Firstly, it should focus on the enforcement of the new act. Secondly, it should
focus on education and sensitisation, in order to discourage Gambians from
taking the backway.
Punishment
The
nature of human trafficking via the backway is fundamentally different to, for
example, trafficking young women for prostitution or for slavery. Conflating
the Backway with these other types of trafficking is problematic because it
assumes there is a ‘one size fits all’ approach to solving the problem.
Subsuming it within the broader category of “trafficking” also risks
undermining or downplaying its importance, and does not recognise the severely
detrimental impact it is having on the country.
Trafficking
via the backway is based broadly on consent of the victim, albeit potentially
uninformed consent. Therefore, a distinction should be drawn between backway
trafficking and other trafficking. With
regards to the punishment prong, the new law would need to take a radically
different approach to the one found in The Trafficking in persons Act 2007.
Firstly, consent is an important factor in the process, and should be taken
into consideration when charging and sentencing a trafficker. It does not seem
correct to call the migrant a “victim” of the trafficker, if it is what he or
she has consented to. Therefore, a provision similar to S.38 (a) of the 2007
Act is not desirable. However, by accepting the consent of the “victim” it is
important to not punish him/her through imprisonment, as this would not help to
solve the problems associated with the backway.
Education
and rehabilitation
The
new law should grant the agency a mandate to educate the population, and
rehabilitate those who have returned from the backway. The agency should be
mandated to work with other government departments, and civil society
organisations, to spread awareness about the dangers of the backway, Families
also need to be sensitised to the issues, and it needs to be made clear that
the strong collectivist nature of Gambian society places great pressure on
young men and women to risk the route to Europe in order to help their family.
Included
in the agency’s mandate should be the ability to rehabilitate those who have
been identified, whilst enforcing the relevant laws, as attempting to leave The
Gambia. Because punishing the migrant is not productive, effectiveness could be
enhanced by offering rehabilitation to those who wish to leave. This could be
in the form of training them in skills required to succeed in The Gambia, or
offering counselling if they were subjected to violence and abuse in Libya.
December
2nd 2016 was a monumental day in The Gambia. It signifies the beginning of a
new era politically, economically, and socially. As part of this transition,
the new government should reconsider the present laws in line with the
recommendations above. It needs to recognise that punishment, whilst being the
cheapest method, may not be the most effective in the long term. Progress can
only be achieved through addressing the root causes of the Backway, in
combination with the introduction of a new law specifically targeted at this
type of migration. The government should seek further help and guidance from
civil society and international organisations in order to progress on the
issue.
However,
we must be realistic and recognise that this process will not be instantaneous
and it may take many years before the positive impact of this approach will be
felt.
