Concourt Ruling On Prostitution: Opportunity For Equal Law Enforcement

By Sij Ncube

HARARE, JUNE 3, 2015 – A recent Zimbabwe Constitutional Court (Concourt) ruling outlawing the arrest of sex workers found loitering in the streets “for purposes of prostitution” is raising concerns it could trigger an explosion in the world’s oldest profession at a time the generality of the population is wallowing in poverty.

The ConCourt on May 27, 2015 permanently stayed the prosecution of nine women who were arrested in March 2014 and charged under the guise of clamping down on prostitution after lawyers from Zimbabwe Lawyers for Human Rights mounted a constitutional challenge on the basis their prosecution amounted to deprivation of their liberty in contravention of Section 49 (1) (b) of the Constitution and was a denial of the fundamental right of the applicants to the protection of the law guaranteed under Section 56 (1) of the Constitution.

In its ruling the ConCourt said it was illegal to charge the women for allegedly soliciting for the purposes of prostitution as long as they were no men who would confirm being approached by the women for sex.

The nine women were arrested on 17 March 2014 in Harare’s Avenues residential area under a Zimbabwe Republic Police dragnet operation code-named Operation No-To-Robberies-And- Prostitution, targeting women who ventured out in the evening.

Those found netted in the dragnet were being charged with contravening Section 81 (2) of the Criminal Law (Codification and Reform) Act (Chapter 9:23), which criminalises soliciting for the purposes of prostitution.

The nine women, Chipo Nyamanhindi, Chipo Mwedziwendira, Lorraine Marapira, Beauty Kaseke, Tionesei Nyaude, Dorcas Linda, Selina Shoko, Memory Muchena and Colleter Chisedzi aged between 21 years and 38 years took their matter to the Constitutional Court seeking a determination of the violation of their fundamental rights to liberty as provided for in Section 49 of the constitution and their right to the protection of the law as guaranteed in Section 56 of the Constitution.

They argued that their rights had been violated as a result of their arbitrary arrest, detention and prosecution.
In the application, which was filed last year by their legal representatives from ZLHR and heard by the Full Bench of the Constitutional Court, the nine women argued that the facts alleged did not disclose an offence and justify a reasonable suspicion that they had committed the crime since standing in the street as alleged by the State prosecutors during their remand proceedings in the Harare Magistrates Court is not an essential element of the offence set out in Section 81 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).

The women further argued that the conduct of the ZRP officers who indiscriminately arrested them violated their freedom of movement and had the resultant effect of placing an overt limitation on the rights of women in that they could not freely move around the Avenues residential area without the risk of being arrested.

In addition, the women also argued that the State failed to allege material facts that the women had approached particular individuals in a public place and by conduct or words communicated that they were offering sex or sexual services in exchange for money.

In a consent order issued by Deputy Chief Justice Luke Malaba, the Constitutional Court declared that the prosecution and remand of the applicants (the nine women) on allegations of having solicited as defined in Section 81 (2) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) on 17 March 2014 amount to deprivation of their liberty in contravention of Section 49 (1) (b) of the Constitution and are a denial of the fundamental right of the applicants (the nine women) to the protection of the law guaranteed under Section 56 (1) of the Constitution of Zimbabwe.

Resultantly, the Chief Justice then ordered that the criminal prosecution against the applicants (the nine women) be stayed permanently.

While the landmark ruling by the Constitutional Court has been welcomed as a major reprieve by gender equality and human rights groups, traditionalists believe it has the adverse effect of encouraging some females to take up prostitution to earn a living in light of the prevailing harsh economic climate.

Others argue the ruling has emancipated female folk that have long suffered from gender discrimination associated with the ZRP’s operations, adding that the ruling helps bring to an end the notorious police practice of indiscriminately rounding up women under the guise of clamping down on prostitution.

Jessie Majome, an MDC-T legislator, human rights lawyer and gender activist, believes the ConCourt ruling highlights the inherent gender balance in law enforcement.

“If the concern is to end prostitution then the police must arrest the men who solicit to buy it (they’re very easy to catch with their car reg nos.) and the women who solicit to sell it. The crime is to solicit, so why aren’t men ever arrested yet they are they are the ones who drive the industry. I think the ruling is an opportunity for equal law enforcement- sauce for the goose and gander,” said Majome.

Grace Kwinjeh, another gender activist and politician, says the Zanu PF administration should take the blame for the blossoming prostitution in the country.

“What encourages prostitution is bad leadership and poor economic conditions,” said Kwinjeh.

Others in support of the court ruling are adamant prostitution is a lifestyle.

Hugo Mangwiro, a student with the University of South Africa (Unisa) suggested the government should go further and put a law that compels those in the trade to go for mandatory HIV testing and also to produce a medical certificate renewable every three months.