Editorial Comment: Unpacking the Concourt judgment on sex workers

Prostitution, the selling and buying of sexual favours, is not and never has been a crime in Zimbabwe although there are a number of laws to minimise harm and the social nuisances that can arise; so it is fairly obvious that many have misinterpreted the judgment this week of the Constitutional Court but equally obvious that the police, with a change in tactics, can maintain their pressure on minimising the nuisance of soliciting.

There are a number of reasons why prostitution has never been a crime.

First, it is not the business of the State to enforce private sexual morality.

Adultery, fornication and whole lot of other practices frowned upon or condemned by many in society are not criminalised so long as they involve adults, the acts are consensual and they are done in private.

Secondly, there are practical problems in enforcing a law banning prostitution. Evidence would be almost impossible to obtain without infringing a whole lot of rights entrenched in the Constitution.

Generally speaking, the payment for sexual services, and the delivery of these services, is done in private without witnesses.

We can see the problem of gathering evidence in one sexual act that is an offence, sodomy.

But when two gay men are consenting adults and are in private, then it has proved impossible to get evidence.

It would be the same even if prostitution was a crime.

This is not to say that everything concerning prostitution is allowed.

Examples of serious offences are forcing a woman into prostitution and living off the earnings of a prostitute.

This at least criminalises trafficking and prevents brothels and pimps.

Having sex with an under-age prostitute is also a crime, but the same crime that would be committed by having sex with any under-age girl, regardless of whether payment was demanded or offered.

There is also a law that prevents people renting or letting premises “knowingly” for the purposes of prostitution.

But this law is again almost unenforceable.

Lodge-keepers or hoteliers, for example, might have suspicions when a couple books a room but cannot be certain and once they have given the couple the key are not required to investigate further.

The same would apply to landlords.

The word “knowingly” gives an escape route and the law is basically there to prevent brothels.

The police know the problem which is why raids on blocks of flats that are generally accepted as being used for prostitution are usually covered by searches for drugs or other non-sexual criminal activity.

For most people, the major social nuisance connected with prostitution is public soliciting.

And this is where the police have been active.

The police get a lot of complaints from people who simply do not want what looks like soliciting outside their homes and do not want the extra nuisance of the kerb crawlers who are looking for a prostitute.

And who can blame them?

However, the courts have ruled that there must be evidence of soliciting.

There has been a tendency to simply round up and arrest women standing in the street and the Constitutional Court has ruled that this infringes their rights.

It is not an offence to go for a walk, stand on a street corner, or even stand in immodest clothing and smile at male car drivers.

There have been complaints that women who are not and never have been sex workers have been rounded up in these raids and even a prostitute should be allowed to walk to the shops in peace.

What the courts want is evidence that there has been actual soliciting for the purposes of prostitution. This should not be difficult to obtain.

The police have in the past used plain clothes officers on foot and in cars to walk or drive past women suspected of soliciting and have arrested the women if the officers are solicited. There is now a witness and an officer wired with a tape recorder should be able to produce evidence that even the most dubious magistrate will accept.

There are clear rules over when entrapment is permitted and not permitted, but we believe the police can keep within the rules and still obtain evidence.

Soliciting is a public nuisance, and the continuous police pressure has done a lot to minimise the problem.

We hope that the police will now, in consultation with the Prosecutor-General’s office, work out ways that are constitutional, legal and effective in maintaining this pressure so that the nuisance can at least be controlled but no one’s rights are infringed.