Are Sex workers Rights Women Rights?

“Only Rahab the prostitute and all who are with her in her house shall live, because she hid the messengers whom we sent.” Joshua 6: 17    “Truly, I say to you, the tax collectors and the prostitutes go into the kingdom of God before you.” Mt 21:31  “By faith the prostitute Rahab, because she welcomed the spies, was not killed with those who were disobedient” Hebrew 11:31 

Estimated number of active FSW in Kenya

The question of sex workers and their rights is very emotive for a lot of people.In Kenya sex work is criminalized (not exactly). The sections of the law that discuss prostitution include sections 182, 153 – 156 of the penal code. These laws do not criminalize prostitution per se but on living “wholly or in part on the earnings of prostitution” and “keeping or managing” a brothel.  While these sections of the law criminalize both men and women, it is women who are almost exclusively prosecuted. 

Cases of sex worker harassment are largely based on being in a “…public place [to] persistently solicits or importunes for immoral purposes.” They are also arrested on account of being “Idle and disorderly” according to section 182 of the penal code. In addition, a number of cities such as Nairobi, Mombasa and Kisumu have put in their By-laws provisions under “General Nuisance” that are used to harass sex workers. In Nairobi it is a General Nuisance for one to be found “Loitering, importuning or attempting to procure a female/male for prostitution purpose.” 

These provisions have increasingly become the basis for violence, extortion and constant harassment meted out to the sex workers by police and criminal groups. The National Commission on Human Rights (KNCHR) in 2012 released a report entitled “Realizing Sexual and Reproductive Health Rights in Kenya: A myth or reality?” http://www.knchr.org/Portals/0/Reports/Reproductive_health_report.pdf .  In this report, detailed testimonies received from sex workers reported the following human rights violations:

•  Rape and harassment by law enforcement agents;
• Violence from their clients who demand for sex and sometimes decline to pay;
• Arrests by police officers who extort money from them;
• Stigma and discrimination of both the sex workers and their children by the society;
• Exposure to HIV transmission when their clients refuse to use condoms or engage in rough sex that tears the condom during the intercourse;
•   Exploitation by male clients who pay very little for the services;
•  Stigma and discrimination as they are labelled as “sinners” or evil people who should not access spiritual services in places of worship.

But why are mainstream women rights organizations not doing more? Are female sex worker rights parts of the global understanding of women rights? Many in the Kenyan women rights movement would beg to differ. This perhaps has to do with conceptual framework adopted in analysing the sex work phenomenon. There are three main theoretical approaches to sex-work. These are:

1.       Sexual exploitation (victim-hood) Framework – sex work is seen from the context of “men who think that bodies of weak and vulnerable women are commodities that can be bought.” Self-agency of women involved in sex work is not recognized for young and poor women who engage in sex work as one the few options to earn a living. This seems to be the position taken by National Gender and Equality commission when they assert that “Lack of financial security and employment opportunities may also lead women and girlsto engage in sex work or other forms of transactional sex. ."  The victim framework emphasizes that certain women are at greater risk of being victimised hence lured into sex work than others. Holders of this view push for criminalization of buyers of sex – and this is called the Swedish Model. Unfortunately even though National Gender and Equality commission takes sex workers as victims (either of poverty, access to education, inequality etc.), its unclear why they (and other holders of this view) don't challenge the current laws that further criminalize and marginalize the victim. Would one not imagine of them pushing for laws that criminalize the one victimizing, rather than the victim?

2.       Market Framework - This holds that sex work brings together service-sellers and buyers. The sex workers as selling a service that is in demand at the “right price”. The holders of this position believe that sex workers are free agents voluntarily engaging in sex work as their preferred means of livelihood. Holders of this view feel that Governments has no role to play between willing-buyer-willing-seller interactions. As a result, sex work they feel should be decriminalized

Under this group, there are some who feel that markets are hardly efficient, and will often require the intervention of the regulator to protect the weak from exploitation. These call for legalization of sex work so that regulations can be put in place, both to protect the sex workers but also the society from possible harms of sex work.

3.       Public Space Framework – These hold that sex work happens within a particular social, moral and cultural context. Because of that, the impacts of sex work are not limited to the two individuals who engage in the transaction, but have a broader social and moral impact. It is therefore necessary for the state to regulate if and how sex work takes place. Religious conservative oriented societies, push for its complete elimination, while more progressive societies push for legalization which then provides regulations of the lawful context for sex work. Such regulations would include, public health requirements, zoning of areas allowed for sex work and proactive measures to guard against trafficking in women (and especially children). 

Much of Kenyan law around sex work is inherited from our colonial history. While progress has been made in the Children’s act towards protection of children from sexual exploitation, the act fails to recognize the vulnerabilities of the children and children of sex workers. This is a remarkable omission, when one recognizes that theoretical framework informing laws against sex workers emanate from a moral/religious assumption of the Kenyan state. 

What is the appropriate response for Kenya?

Kenyan leadership is not known for taking bold stances on many social issues – especially those touching on conservative moral positions. When the Kenya National Commission on Human Rights, issued the report calling for decriminalization of sex work, uproar was loudest from those who had yet to read the report.

 But how should we deal with the sex work in Kenya. 

I think we should legalize it so that we can regulate the appropriate context – place, time, and individuals engaged in sex work. Because of blanket criminalization, Kenya has failed the most vulnerable in the industry especially children. Sex workers know best who is engaged in sex work, and how it is done and where it done. The country needs to engage with them in the fight against child trafficking and exploitation as well as public health imperatives. They are not going to be able to do that under conditions of blanket criminalization.

In order to protect the rights of the conservative moralists, it may be helpful to allow for zoning of certain places, where sex work can be allowed to legally take place. Cigarette smoking for which there is overwhelming evidence of its harmful outcome both for the smokers and non-smokers has used this approach. Why not use the same approach for sex work?

Lastly we must admit that in our context, there are many who have been forced into sex work due to poverty and joblessness. Thus we must combine our legalization efforts with social protection mechanisms so that those who wish to leave sex work, can be enabled to do so in a socially acceptable way. We already have a clear view of how many sex workers there are in this country – one such example is this study. Let us as a society provide a mechanism where people can be supported. Those who wish to remain in sex work should be supported with conducive work environment (as we do for any other category of workers), but also those who wish to leave, should be supported to do so without undue sufferings.