“If a girl wants to sell her body, so be it. None of my business. Don’t athletes sell their bodies, too? People can do behind closed doors whatever they want, as long as it doesn’t hurt anyone else.”
― Oliver Markus Malloy, Bad Choices Make Good Stories – Going to New York
Hey! My name is Mumbi, and on top of being a writer and performing spoken word poet, I am also a law school graduate. As part of the requirements to graduate with my Bachelor of Laws degree, I had to write a dissertation, which was a legal research paper on any legal topic. One thing about me, I get bored very quickly, and so it is imperative that I only commit to things that I am interested in, in order to see them through. As such, I chose to write on the anti-prostitution laws in Kenya, specifically highlighting the patriarchal nature of our laws, the manner in which anti prostitution laws create more problems than solutions, arguing for the decriminalization of commercial sex work, and arguing that sex work is dignified work. I wrote this for all commercial sex workers who face violence with little avenues of redress, and in this blog post I would like to share a bit of my research with you.
With full appreciation and without prejudice to the fact that commercial sex workers can be male, female, or even non-binary, my take focuses on female commercial sex work, as a large number of sex workers in Kenya identify as female.
Firstly, I will start by making it clear that I believe sex work is dignified work. You see, many times when people argue that sex work is not work, they say things like sex work is ‘self-debasement for profit‘, or that sex work is ‘the reduction of self to be used as an object by others‘, and my response is, isn’t that the definition of every single employment position?
Criminalization of sex work under the law has more to do with the pretentious moral bubble we think we live in, rather than our actual social context. Prostitution is a victimless crime. That then begs the question, who is so high up the moral ladder to dictate what is morally right or wrong?
Below, I’ll give brief background, then I will summarize what the [Kenyan] law says about prostitution, and I will then give my personal justifications for decriminalizing prostitution using two theories: feminism and legal positivism.
A famine, locust attack, and colonization sparked prostitution.
Prostitution is said to be the oldest profession in the world, and so its origin dates back to time immemorial. In Kenya, the earliest documented account of prostitution dates back to the late 1890s/ early 1900s when colonialists set up camp in Nairobi as they were constructing the Uganda railway line from Mombasa to Lake Victoria. Nairobi then became a business hub which prompted many Kenyans to move to Nairobi to work for the white colonialists. It is said, and quite possibly true, that the earliest Kenyans who moved to Nairobi to find work were prostitutes. During or around this time, there was a famine in the Central and some of the Eastern regions of Kenya due to rain failure and locust attacks. This therefore led women from the region to move to Nairobi to pursue sex work. Not only that, but colonizers had began imposing taxes on land, which meant that agriculture was not as lucrative as it one was, pushing them to find new streams of income. Interestingly, statistics show that a high number of sex workers in the capital are from the central region. This might be so due to the proximity between Nairobi and Central, but it might also be due to the famine that drove women to pursue the trade.
There were three forms of prostitution that took place in Nairobi in those early days. They were: ‘Wazi wazi’ – these were women who would sit outside homes shouting their prices while exposing their bodies. ‘Malaya’ – these were in-house prostitutes who would accept clients into their homes. They were more discrete and private, and ‘Watembezi’ – these were women who would walk along streets where potential clients would frequent. This is probably the most common type of prostitution in Kenya. They were known as “watembezi wa River Road” because they were common in the River Road area. When Kenya gained her independence, hotels were set up on Koinange Street, where the white people who stayed in Kenya worked, and so the watembezi moved camp from River Road to Koinange Street, and that is why today they are known as ‘watembezi wa K-street‟. Over time, prostitution became common in other cities as they became urbanized. There is therefore a nexus between urbanization and prostitution.
It is imperative that we get a clear understanding of what the law says about commercial sex work. The legislative instruments I will reference are: The Constitution, the Penal Code of 1948, and the Sexual Offences Act 2006.
The Penal Code 1948
I’ll start with the Penal Code of 1948, as it was the earliest law in Kenya that made certain aspects of prostitution an offence. Sections 153 to 156 of the Penal Code criminalize the following:
living on the earnings of prostitution (applicable to both men and women),
soliciting in public or importuning for immoral purposes (applicable to men only),
living with or habitually being in the company of a prostitute (applicable to men only),
exercising control, direction, or influence over the movements of a prostitute in a manner to suggest aiding, abetting, or compelling prostitution (applicable to both men and women),
using of a house for purposes of prostitution (applicable to women only),
living in or frequenting such a house, or living on the earnings of the prostitute, and keeping, managing, or knowingly leasing, occupying, or being the landlord of a brothel (applicable to both men and women).
Sexual Offences Act 2006
The Sexual Offences Act criminalizes rape and sexual assault. The thing about this is, by virtue of the Penal Code, prostitution is an offence and therefore a sex worker is not able to report sexual abuse, because sex work is illegal in the first place.
How this manifests in real life, is if a prostitute reports a person for sexual abuse and identifies themselves as a sex worker, they would inadvertently be reporting themselves of committing the crime of prostitution, and would not get justice for being sexually abused.
A key milestone of the 2010 Constitution was the Bill of Rights, which introduced rights such as: the right to equality and non-discrimination on any ground, the right to have one’s inherent dignity protected and respected, the right to fair administrative action, and the right to fair labour relations.
The Constitution allows for a law to be challenged simply based on the ground that the law is unconstitutional, because it is intrinsically discriminatory.
The legal theories I used to justify the decriminalization of commercial sex work are feminism and legal positivism.
The Oxford dictionary defines prostitution as “the practice or occupation of engaging in sexual activity with someone for payment”. It goes on to define a prostitute as “a person, in particular a woman, who engages in sexual activity for payment”. The link between these definitions and feminism, is that even the basic English definition of the words are discriminatory to women. The definition only focuses on prostitution and a prostitute from the point of view of the person selling sex, but nowhere does it discuss the person paying for sex. This is dangerous as it transcends also into our laws. If the definition of the word only includes the woman and not the other party, then neither will the punishment at law. The language would therefore be absolving the party paying for sex.
Further, this exposes the problematic way in which we view transaction sex. Transactional sex happens all around us, and it would therefore be an arduous task to draw the line between where prostitution begins, and where harmless transactional sex ends.
Decriminalization of commercial sex work is a human rights issue of human dignity and bodily autonomy. It is a reality that there are women who wish to commodify sex, and lawmakers should be alive to the reality of the divergent lives of women who engage in sex as a livelihood.
At the heart of legal positivism is the separability thesis. This is a theory that states that morality has no place in law, and vice versa. According to H.L.A. Hart, a proponent of the theory, the objective of the law should not be to impose a moral code on society. He propounded that the law is under no obligation to satisfy the demands of morality, nor should it concern itself with the private morality of individuals.
It is no secret that our laws are largely misogynistic in nature i.e. written for men by men, and therefore many laws, especially concerning a moral standard, are prejudiced against women. The issue that I see with anti-prostitution laws in Kenya, is that they seek to serve a moral purpose, rather than taking into account the actual situation and needs on the ground. By criminalizing commercial sex work, the law only creates new problems, rather than solving a problem that was never there to begin with.
A fellow poet, Kimathi (YoursTruly), has a line in one of his poems that says “if symptoms persist, maybe you were never sick to begin with”, and I find that to be a fitting parting shot of the impact of criminalization of commercial sex work.
Conclusions and Final Remarks
Prostitution is a victimless crime, and it is a matter of private morality. A victimless crime put simply is an act which violates the law, but does not violate the rights of any party; this is because the participating parties have consented. To what extent therefore does the Constitutional right to privacy play a role in private morality? The question is the raised as to whether all immorality perceived by the public should be illegal. Is immoral a synonym for illegal?
I would also like to briefly talk about health. The reason that the spread of AIDS might be associated with sex workers, is due to factors such as sex workers not having access to proper health care, and sex workers being disproportionately exposed to sexual harassment. It should therefore be considered that the stigma surrounding sex work and the lack of protection is what leads to their lack of proper health care access. Exchange of money does not transmit a disease. Borrowing from a report by the Global Commission on HIV and the Law, commercial Sex workers have been denied their constitutional right to the highest attainable standard of health, due to the discrimination they face. If sex workers do not fear seeking medical help due to stigma, they will be empowered to take care of their health, and thereby reduce the spread of HIV.
Final remark: whenever we have these discussions of women and sex, it can be viewed as an argument between those who are sex positive and those who are sex negative, when in reality, the aim here is to be pro-letting women do what they want with their bodies. Want to engage in sex work? Great, that’s your choice. Don’t want to engage in sex work? Great, that’s also your choice. Stop policing women’s bodies for crimes that don’t exist.
For your perusal, below is a list of literature that contributed to my research:
Nelson N, “Luise White: The Comforts of Home: Prostitution in Colonial Nairobi, Xiii, 285 Pp. Chicago and London: University of Chicago Press, 1990 [Pub. 1991].
Luise White, The comforts of home: prostitution in colonial Nairobi, (Chicago and London: University of Anne McClintock “The Scandal of the Whorearchy: Prostitution in Colonial Nairobi” (Indiana University Press, 1991).
H.L.A. Hart, The Concept of Law, 2nd. ed. (Oxford, UK: … H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4(1958).
Peninah Mwangi, Phelistus Abdalla, Lucy Maina, Josephine Mtende, 2017 “Aren‟t We Also Women? Kenya Sex Workers Submission to The UN Committee on Elimination of Discrimination Against Women”.
Erick Matara and Nicholas Komu 2017 „Senator Omanga, atheists defend Nairobi sex workers‟ https://www.nation.co.ke/news/Senator-Omanga–atheists-defend-Nairobi-sex-workers/1056- 4213074-67ndp8/index.html?utm_source=&utm_medium=&utm_campaign= accessed 29 October 2018.
Everyday negotiations of state regulation among female sex workers in Nairobi, Kenya” in Susan Dewey ed, Policing Pleasure: Sex Work, Policy and the State in a Global Perspective (New York University Press, 2011) 115 at 118.
FIDA, 2016 “Documenting Human Rights Violations of Sex Workers in Kenya”.
Secretariat, Global Commission on HIV and the Law, (2012) “Risks, Rights & Health” UNDP, HIV/AIDS Group.