We don’t harass women at night, council tells court

By Maureen Mudi

The Mombasa Municipal Council has denied harassing women on the streets at night.

However, the council told a court it has a duty to defend its residents from prostitutes prowling the streets at night.

The council also told the court to dismiss a suit filed by two women, Ms Lucy Nyambura and Ms Ann Wangui, who were arrested on the streets last August, with condoms and later charged with loitering for immoral purposes.

In an affidavit, Town Clerk Tubman Otieno claims the women, who filed a petition at the Mombasa High Court, have no basis in law to allege that the by-laws used by the council are unconstitutional.

The women claim their arrest and arraignment was sexist and discriminatory.

Three weeks ago, the High Court stopped proceedings of a criminal case in a lower court against the women after they filed the petition.

No absolute rights

The Federation of Women Lawyers (Fida-Kenya) and Solidarity for Women in Distress (Solwodi) has instructed lawyer Harun Ndubi to represent the women.

The Town Clerk says: "The fundamental rights of the petitioners was not absolute and they should not prejudice the public interest."

Mr Ndubi had claimed Section 258(e) violates the rights and dignity of women and entrenches discontent among women who cannot freely venture out of their houses for fear of "odious arrest".

But the council’s lawyer Ken Kibaara said the by-laws in respect of public nuisance do not impair the constitutional right of residents getting dignified treatment and the right to use contraceptives.

"The laws, which are aimed at prohibiting prostitution, strike a balance between the rights of the petitioners and the rights and values of the citizenry living in the municipality who are entitled to have their constitutional guarantees," he told the court.

He said the rights of the petitioners should not tread upon those of the citizenry who "do not wish to see immoral practices such as prostitution being practised".

"The by-law is tailored as an appropriate response to the evil of prostitution and the inherent dangers it poses and the tragic consequences it carries," he added.

The women seek an order for the AG to advise the Local Government minister that the section and any other similar by-law is unconstitutional.