Criminalizing sex work in Kenya: The double standards

In the recent past, sex workers have borne the wrath of police and Nairobi City Council officials who harass them and interfere with their work. Ironically, only women are arrested whenever they are found plying the age-old trade while their male clients go scot free.

The marking of International Sex Workers Rights Day on 3 March was meant to be a wakeup call for various stakeholders who perceive sex work as criminal, including government officials. But this has not seen the light of day as human rights violations perpetrated against sex workers continue.

Daughty Ogutu has seen it all. The former sex worker narrated to this reporter how she was a victim of police brutality in her ‘active’ days. “They often beat me up, hurled insults at me and arrested me.” The 28-year-old, a founding member of the Kenya Sex Workers Alliance (KESWA), decries the double standards applied by most people, when dealing with prostitutes.

“The trade involves two parties but oftentimes only the prostitute and not her/his client is harassed,” she says. The Kenyan society, Daughty says, is hypocritical. People are quick to point fingers at prostitutes but fail to see other grave ills committed in the society.

Quoting her organisation’s slogan, she says that ‘Violence against us is not only tolerated, but even expected by society. It is clear that labelling sex workers as criminals puts us at odds with law enforcement authorities who should be protecting us and it sends a message to society that sex workers are expendable. Sex workers are not criminals and violence against us must be classified as a crime.’

The sex workers umbrella body, KESWA, has been instrumental in documenting human rights abuses on sex workers. This has spurred debate and action among civil society groups, lawyers, medics and academicians who have vowed to stop the criminalization of sex workers. Among other things, the organization builds capacity among sex workers by training them on their rights.

“We train them on how they can document any violations using their mobile phones, which they can use as evidence in court.” This is very pivotal as many young prostitutes suffer in the confines of their work. Some undergo serious bodily harm perpetrated by their male clients; others are forced to render free services but they keep quiet as they don’t know where to report such abuses.

Ironically, when human rights abuses are reported to the police, they (police) turn a blind eye and fail to act. In the worst case, the same police even rape young girls who report such cases to them. Thus, the criminalization of sex work forces sex workers to live in fear of police who harass and abuse them with impunity. The society has failed to realize that majority of sex workers engage in the act as a means to an end. They are being arrested and their rights are being violated for doing work that supports their families.

“A sex worker is your everyday person; he or she does not come from planet Mars,” says Daughty, adding that anyone is a potential sex worker. In Kenya, just like everywhere else, a sex worker could be a young girl, a career woman, a housewife, a gardener, taxi driver among others. When police harass such people on the basis of engaging in criminal work, they are denying them a chance to make a living. “A sex worker could even be a sister to a police, a politician or any member of the society; so authorities should be very careful when dealing with them.”

In Nairobi as in other big cities in Kenya, the police and city council officers often conduct swoops on the streets where they arrest commercial sex workers, mostly female. As they drag them into police cells, they tell them that they arrest them for loitering, a claim that most sex workers find laughable.

“We need proper charges and not mere claims. We are ready to defend ourselves in a court of law,” says John Mathenge, the national coordinator of KESWA.

Though prostitution is illegal in Kenya, Mathenge feels that the government should legalize it, as this would pave way for a safe environment in which sex workers enjoy the full scale of their rights. In the same breathe, Mathenge implores on the policy makers to create provisions that would allow sex workers to pay taxes. “This is an industry like any other and could generate money from which the government can raise revenue.

REPEALING OF SEX WORK LAWS

Sex work in Kenya is currently regulated by a combination of colonial criminal law, recent laws including the 2006 Sexual Offences Act and municipal council bylaws. The legal code neither defines prostitution, directly criminalizes it nor forbids it.

Many feel it is illegal to live off the earnings of prostitution but are blind to the fact that this is the current situation. While the national law criminalises the involvement of third parties e.g. pimps, brothel owners or traffickers — the municipal bylaws outlaw 'loitering and importuning for the purpose of prostitution and 'indecent exposure’ which are aimed at criminalising sex work itself.

The City Council of Nairobi is considering relaxing its bylaws to allow commercial sex workers work freely in the city. In effect, the move would allow a conducive environment for a trade widely shunned by the society.

Nairobi City Mayor George Aladwa has been on record advocating for the rights of sex workers, noting that the council would harmonize its by-laws with the new constitution to allow sex workers carry out their work freely. Though he doesn’t talk of legalizing the age-old trade, the mayor says that the council would consult with different arms of government so as to complement the current by-laws in line with the new constitution and help the sex workers.

KESWA and other like-minded organizations that protect the rights of sex workers have been trying to lobby policy makers to change laws that would regulate sex work. Sex workers argue that there should be a dialogue between the government and themselves, to try and unravel the issue of de-criminalizing the trade.

“We are ready to come into a negotiating table with government,” says Mathenge who says that both parties should at least compromise.

Once the by-laws are harmonized, sex workers will operate in designated areas, set aside by the city council.

"We will certainly find places to have them operate freely without any harassment. These are people who have dedicated themselves to do their work, there is no need to continue harassing them," said an official from the council.

KESWA is in consultation with the police department to conduct awareness trainings for law enforcement officers. The training will focus on a change of attitude among the police, de-stereotyping sex trade, curbing police harassment, human rights among others. The umbrella body will also conduct media trainings that would help journalists report objectively on the issue of sex work and sexuality.

ACCESS TO HEALTH RIGHTS

The criminalization of sex work hampers the health rights of prostitutes. Due to negative stereotypes, most sex workers are not able to access basic health facilities. For the most part, they are shunned by doctors and not treated for even minor ailments.

Those who are HIV positive bear the brunt as they cannot access proper medication, including the access to ARV drugs. Unknown to many, sex workers have been very instrumental in the fight against HIV as they are part of the solution to preventing the spread of the scourge.

“Due to the nature of their work, majority of prostitutes use protection, contrary to what the society thinks,” says Daughty. But some clients come with coercion, often using big moneys to sleep with them without protection.

According to *Mwikali, a veteran sex worker in Koinange Street (Nairobi’s famous sex spot), most prostitutes want to use condoms but often times are blinded by the money. “Sometimes a client can offer me Ksh10, 000($120) in exchange of unprotected sex.” She will often take the money despite the health risks associated with unsafe sex.

Some clients adamantly refuse to use condoms with prostitutes thus endangering their health. The fact that the trade is criminalized and viewed as dirty has made it hard for prostitutes to defend their health rights. “Some clients are very violent and often threaten to harm you when you mention the use of condoms.” After all, you are a prostitute, is what they say to us.

STEREOTYPES

Sex work manifests in many forms. There are those who practice the trade in open streets, often skimpily dressed. Others prefer brothels, mainly operated by pimps.

According to Daughty, 60 percent of sex workers are career women who often supplement their income with sex work. “It is wrong to suggest that only half naked women who loiter the streets at night are prostitutes; a prostitute is your everyday woman or man.” In Nairobi, some up-market residential houses have been turned into brothels where affluent men and women engage in illicit sex, even during day time.

“But police have turned a blind eye to this. Some highly placed personalities in the country have gone scot free because money changes hands between them and police. Is this not double standards?” asks Daughty.

She adds that the society thinks that prostitutes are uneducated people and hence fall prey to police brutality. “You will be shocked that majority of sex workers are university students or career women. Some are CEOs of major corporations; but the society has failed to see this.”

Daughty argues that the use of the word ‘commercial’ while referring to sex workers is stereotypical and prejudicial. “Not all prostitutes engage in sex for money. Some do it in exchange for gifts, food, school fees and other basic needs.” Some women even exchange sex for tomatoes; that’s how dire the situation can be.

“There is nothing like a commercial sex worker. Why don’t we refer to bankers as commercial bankers or lawyers as commercial lawyers? Do you see the double standards?”

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* Joyce J Wangui is AfricaNews reporter in Nairobi, Kenya.

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