The movie The Kite Runner may inspire many South Africans to dust off their childhood kites and let them loose over the rooftops of their neighbourhoods. Frivolous fun, reminiscent of carefree days and not hurting anyone? Well, not if you are a Johannesburg resident.
If you study the municipal by-laws of 2004, you will find a number of seemingly innocent activities that are prohibited: fly a kite or roll a hoop over a public road, wash or repair a car in a public road, beg on the streets, climb a tree in a municipal area, watch over someone else’s car, sing any obscene or profane song on a public road, or use ”any threatening, abusive or insulting words or gestures or behaviour with intent to cause a breach of the peace”.
You may be hard pressed to find any Jo’burger who has not fallen foul of these laws — including, perhaps, Forest Town resident Jacob Zuma’s rendition of Umshini Wami. While Zuma is no doubt preoccupied with defending himself against charges of a stronger nature, these municipal by-laws are wielded with great power and retribution against a particularly vulnerable group — sex workers.
The Sexual Offences Act of 1957 prohibits sex work. This law has its roots in the archaic Immorality Act, which outlawed same-sex relationships and relationships between black and white. Yet the Sexual Offences Act is seldom used to prosecute sex workers — probably because it is hard to catch someone in the sex act and to prove it was for financial gain. So prosecution of sex workers is often left to vague municipal by-laws that give police a wide range of powers and discretion to pursue an array of ”misdemeanours”.
Research by the reproductive health and HIV research unit reveals that sex workers in Hillbrow report being arrested by police if they wear short skirts or are found to have condoms on them — apparently a sure sign that they are selling sex. Often they are released if they can pay the fine (up to R500), pay whatever money they have on them, bribe the police officer or have sex with him.
Make no mistake, while the by-laws are both broad and rather peculiar in places, they do not state that it is a misdemeanour to wear a short dress or to carry condoms. While the ”public decency” section of the by-laws does prohibit ”soliciting”, it does not expand on what that entails, and effectively gives authorities carte blanche.
These laws, and their haphazard and often vindictive and exploitative enforcement, do little to eradicate sex work. They make an extremely vulnerable group even more vulnerable.
In South Africa, sex workers are generally female, poor, black, illiterate and originally from rural areas — and, in Hillbrow, they are often undocumented migrants from conflict-ridden neighbouring countries. These women mostly take on sex work out of dire necessity. Petty laws and harsh treatment by police will not persuade them to give up their only survival strategy — one that exposes them to exploitation, violence, rape, stigma, terrible working and living conditions and a host of STIs, as well as HIV.
Research shows how criminalisation, stigma and a hostile society inhibit sex workers from accessing essential social and health services, and how that in turn causes great suffering, hardship and often death.
From this, no one benefits — something the majority of the Constitutional Court regrettably failed to grasp in their 6-5 decision in the Jordan case, where an attack on the constitutionality of criminal prohibitions on sex work failed.
Fortunately, the South African Law Reform Commission is taking on the issue of ”adult prostitution” in earnest this year. 2010 is looming and suddenly the political will to deal with sex work has been awakened (partly thanks to police National Commissioner Jackie Selebi, who suggested last year that sex work and public drinking be legalised during the World Cup period).
The commission is considering three options: maintaining criminalisation, decriminalisation or legalisation (and thus regulation) of sex work. It will release its proposals in a discussion document later this year and will invite input from civil society. It is vital that a wide range of organisations show up for this process, and present strong public health and rights-based arguments on why sex work should no longer be criminalised. These voices will be particularly important to counter the moralistic tones of the religious right, who will be sure to take on this process with gusto (still smarting from losing the battle on termination of pregnancy).
Instead of criminalising the industry, we should provide specialised services to sex workers. We should enable them to live and work with dignity. That is what true empowerment is. This under-served and highly stigmatised sector of society has been overlooked in South Africa’s democratic dispensation, and a small step in the right direction would be to strike this antiquated law off our books.
Marlise Richter is a researcher at the reproductive health and HIV research unit, University of the Witwatersrand, and is based in Hillbrow