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Hello Zimbabwe! Welcome to the Zimbabwe Women Lawyers Association column where we will be discussing the law as provided for by the constitution, the different laws in Zimbabwe as well as the judicial precedents. Today we are looking at one of the court judgements that has become a thorn in the flesh for many Zimbabweans. Did the Constitutional Court legalise sex work? What was the effect of the order that was made by the Concourt?

There have been numerous misinterpretations of a number of court pronouncements. One such misinterpretation is towards the constitutional ruling that stated that the arrest of nine women alleged to have been soliciting for purposes of prostitution was unconstitutional as it deprived them of their right to liberty.

Many Zimbabweans took it to mean that the Concourt had legalised sex work in Zimbabwe.

This has caused a lot of hullabaloo with people blasting the bench for promoting immorality.

It is not uncommon these days to hear people saying that sex work is now legal in Zimbabwe referencing the order that was given by the court. Social media is awash with statements and jokes to that effect. When the vendors were protesting against their removal from the streets, some of them held placards that questioned why they were being removed from the streets where they eked out an income with “moral” work yet sex workers had been allowed to go about their business.

It has even been alleged that women’s rights organisations celebrated the judgement because they are in full support of sex work and are encouraging women to engage in such. This is a misrepresentation of facts and this article will seek to unpack what the true meaning of the court order was as well as analyse its effects.

The Constitutional Court of Zimbabwe delivered what is now being termed a landmark ruling on May 27 2015. The highest court in the land stopped and outlawed the prosecution of nine women who had been charged under section 81 of the Criminal Law (Codification and Reform Act) (Chapter 9:23).

The section provides that any person who publicly solicits another person for the purposes of prostitution shall be guilty of soliciting and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.

The reasoning behind this judgement was that the arrest of the nine women amounted to the deprivation of one’s liberty as they were arrested for being found in the Avenues area and yet there was no proof that they were in actual effect soliciting for the purposes of prostitution. The charge that had been drafted by the police had not clearly elaborated who was being solicited and how.

The nine women had been arrested by the police whilst walking in the avenues area during the police’s crackdown operation named, ‘Operation No to Robberies and Prostitution’. The men who were being solicited were not there to give evidence that indeed these women were soliciting from them.

The courts of law heavily rely on evidence so that they can conclusively give a sound judgement. This is what in this particular case and many others where women were arrested on suspicion of soliciting was missing. Arrests were being effected based merely on the assumption that because the Avenues area is a red zone for sex work, any woman found walking at night, going about their business, was in fact soliciting. This inevitably interfered with women’s right of movement as provided for by section 66 of the Constitution.

That being said, given Zimbabwe’s history of policing and restricting women’s movements, this is no doubt a progressive move and a great milestone towards achieving gender equality as well as respect and the protection of women’s rights.

This order obligates the police to have both reasonable suspicion and evidence that someone is indeed soliciting for the purposes of prostitution before making an arrest.

It has ensured that women, like men, will be protected in public spaces thereby fully enjoying their right to freedom of movement.

There had, for a while, been a problematic misconception that every woman who moves around in the Avenues at night is a sex worker. The arbitrary arrests of women which had become a common sight in the Avenues area for far too long had meant that women could never go about their business freely in the evening.

The likes of Tsitsi Dangarembga for example have fallen victim to such unwarranted crackdowns by the police.

This shows that the arrests had not targeted sex workers per se but were tantamount to controlling women’s movement.

Women should be allowed the freedom to be at any place and at any time without hindrance. This ruling represents a great leap in gender equality as often it is only women who are subjected to the arrests and not men.

It is important to stress, however. that this ruling in no way legalises sex work. The mischief that the ruling sought to rectify is the gender discrimination associated with the police’s operations of indiscriminate rounding up of women under the pretext of clamping down on sex work.

Written by Tariro Tandi – Transformative Justice Programme Manager.

For feedback, questions and comments please feel free to email [email protected] or to send a whatsapp message on 0777 828201 and we will definitely address them. Look out for the next article in this column next week and the Kwayedza every Thursday. Let’s discuss the law.