FIJI HAS AN EFFECTIVE LEGISLATIVE FRAMEWORK IN ADDRESSING THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD PORNOGRAPHY
The assertion by the National Legal Officer at the Office of the United Nations High Commissioner for Human Rights (OHCHR) in her submissions on the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, as reported by the Fiji Times on the 7th of October 2020 that “Fiji lacked a legal framework protecting children from sexual exploitation in travel and tourism”, is factually incorrect. A perfunctory excavation of our laws would show that Fiji already has in place a very comprehensive and effective legislative framework to respond to violence, abuse and sexual exploitation of children criminalising specific acts and activities relating to the sale of children, trafficking in children including domestic trafficking in children, slavery, sexual servitude and deceptive recruiting, child prostitution, child pornography, child marriages and constitutional safeguards against harmful cultural practices (such as child marriages or traditional reconciliations) that would result in the diminution of the constitutional rights and freedoms of the child. While our laws cannot be overly prescriptive, as the OHCHR laments that “none specifies that hotels need to do this, tour guides need to do that”, there is little ambiguity in the fact that under Fijian laws, sex with a minor is criminalised, forced marriage is criminalised and is illegal with minors, prostitution is criminalised and clients can also be prosecuted and moving children domestically or across borders for the purpose of sex is criminalised and child abduction is a criminal offence. The salient features of these national laws are centred around the protection of children from sexual abuse and exploitation and in ensuring that the perpetrators face the criminal justice system.
I draw the attention of the OHCHR to the following legislations:
Section 41 of the Fijian Constitution
■ Section 15 of the Child Welfare Act 2010 on the best interests of the child
■ Section 29 of the Marriage Act
1968 - Penalty for marrying a minor
■ The following sections of the Crimes Act 2009- Section 88 (Crime against humanity—rape), Section 89- (Crime against humanity— sexual slavery), Section 90 – (Crime against humanity— enforced prostitution), Section 91- (Crime against humanity— forced pregnancy), Section 93- (Crime against humanity— sexual violence), Sections 102 to 108 (Slavery, Sexual Servitude and Deceptive Recruiting), Sections 111-120 - Division 6 ( Trafficking in Persons and Children), Sections 206 – 224 (Sexual Offences), Section 211 (Abduction of person under 18 years of age with intent to have carnal knowledge), Section 214 ( Defilement of children under 13 years of age), Section 226 (Selling minors under the age of 18 years for immoral purposes), Section 227 ( Buying minors under the age of 18 years for immoral purposes), Section 229 (Authority of court as to custody of young persons), Section 230 ( Person living on earnings of prostitution or persistently soliciting), Section 232 (Suspicious premises), Section 233 ( Brothels), Section 284 (Child stealing), and Section 285 (Abduction of young persons).
■ Part 10 (children) sections 9091 of the Employment Relations Promulgation Act 2007 on the prohibition of worst forms of child labour
■ Section 62 A (1) of the Juveniles (Amendment) Act 1997 on pornographic activity involving juveniles
Section 24 and section 25 of the Online Safety Act 2018 on causing harm by posting harmful communications and posting an intimate visual recording
■ Section 11 of the Cybercrime Bill 2020 (tabled in Parliament) which provides for the offence of child pornography with a specific definition of “child pornography” under Section 11(2)
Section 29 of the Marriage Act expressly provides that “Any person whoa)
Willfully and unlawfully marries a person under the age of 18 years; or b) Induces or endeavours to induce any marriage officer or other
person to solemnise marriage between parties when the person so acting knows that one of the parties to the marriage is a minor; or c) Abets or assists the principal offender in any such act or endeavour as is described in paragraphs (a) and ( b), knowing that a party to the marriage or intended marriage is minor, shall be guilty of an offence and liable on conviction to a fine not exceeding $ 500 or to imprisonment for a term not exceeding two years.
Furthermore, Fiji has ratified the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and is also party to the 1993 Convention on protection of Children and Co- operation in Respect of Intercountry Adoption both of which inspired theOptional Protocol as well as the 1999 ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour ( No.182) and the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (‘Palermo Protocol’) that in turn have been influenced by the Optional Protocol.
The Fijian Constitution also allows for the application of international law.
The Importance of ratifying the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography
The Human Rights and AntiDiscrimination Commission commends the State for considering the ratification of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (‘Optional Protocol’) as it would serve to further strengthen Fiji’s resolve to fulfil its obligations under Article 34 of Convention on the Rights of the Child (‘Convention’) to protect children from all forms of sexual exploitation and sexual abuse and Article 39 of the Convention which requires States Parties to ensure recovery and dignified reintegration of child victims of sexual exploitation.
Article 34 of CRC states:
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: a) The inducement or coercion of a child to engage in any unlawful sexual activity; b) The exploitative use of children in prostitution or other unlawful sexual practices; c) The exploitative use of children in pornographic performances and materials.
While section 34 of the Convention requires States Parties to protect children from “all forms of sexual exploitation and sexual abuse”, the Optional Protocol requires States Parties to introduce and implement measures to prohibit specific acts and activities relating to the sale of children, child prostitution and child pornography.
It criminalises specific acts and activities that amount to the sale of children, child prostitution and child pornography, whether such offences are committed domestically or transnationally or by an individual or as an organised crime.
It sets out the minimum standards required to protect the rights of child victims in the criminal justice system giving primacy to the principle of the best interests of the child and recognises the right of victims to seek compensation and dignified and safe reintegration of child victims. It calls for the strengthening of international cooperation and assistance in combating the root causes of offences. The Optional Protocol was adopted by the United Nations General Assembly on 25 May 2000 and entered into force on 18 January 2002.
Fiji ratified the Convention on the Rights of the Child (CRC) in 1993 and signed the Optional Protocol on 16 September 2005 but is yet to ratify the Optional Protocol. As of December 2019, 176 states are party to the Optional Protocol. The ratification of the Optional Protocol will complement and strengthen Fiji’s comprehensive legal framework.
Recommendations
■ It is recommended that Fiji ratify the Optional Protocol without reservations.
■ It is further recommended that the provisions of the Crimes Act as it relates to the age of criminal liability under Section 27 of the Act to children who are over 10 years of age but under 14 years who may be held criminally liable under Section 230 of the Crimes Act for living on earnings of prostitution or persistently soliciting must be interpreted in consonance with the principles of the best interests of the child as it can leave such children who are already in a vulnerable position susceptible to criminal prosecution.
■ Human rights training of law enforcement agencies, child welfare officers and community advocates in building their capacity to effectively deal with child victims during investigation and at various stages of the criminal justice process as well as dignified reintegration into society.
■ Promote education and advocacy on the rights and obligations under the Optional Protocol through multisectoral cooperation between the state, civil society,national human rights institution including the mobilisation of communities and the media to raise awareness including in schools through human rights education.
■ It is imperative that the State, law enforcement agencies and the national human rights institution develops its capacity in this area to enable independent monitoring and reporting. There is a need to develop a more robust monitoring mechanism to track progress in the implementation of the Optional Protocol.
■ A cohesive child friendly support system/network should be set up to assist child victims and survivors of sexual exploitation with adequate psycho-social support enabling constructive engagement between state, civil society, communities and national human rights institution to assist with dignified and safe reintegration of child victims into the communities, help empower child victims and ensuring that their views are heard when making decisions about their life.