For many years, commercial sex workers have been operating under the cover of darkness and along dingy corridors for fear of being arrested and jailed.
The fear of being prosecuted for practicing the oldest trade led to the name of twilight girls, loosely translating to the time at sunset when the skimpily dressed girls with heavy make-up take up strategic positions along the streets to attract customers.
Theirs have been a battle of wits with police and other security officers to avoid being arrested and charged with prostitution with a possibility of going to jail for three years if found guilty.
That fear is set to end soon if Members of Parliament approve a proposal by Chief Justice Martha Koome and the National Council on the Administration of Justice (NCAJ) to decriminalize prostitution through amendments to the Penal Code.
Under the Penal Code (Amendment) Bill 2023, the CJ wants Parliament to repeal and delete Sections 153, 154, and 155 while outlawing prostitution.
“The principal Act is amended by deleting section 153, deleting section 154 and section 155 of the Penal Code,” the Bill proposes.
Section 153 of the Penal Code makes it criminal for male prostitution by providing that every male person who knowingly lives wholly or in part on the earnings of prostitution; or in any public place persistently solicits or importunes for immoral purposes is guilty of a felony.
“Where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person, or generally, he shall unless he satisfies the court to the contrary be deemed to be knowingly living on the earnings of prostitution,” read the provision.
Section 154 makes it illegal to engage in female prostitution and provides that any woman living on earnings of prostitution or aiding prostitution or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling prostitution is guilty of a felony.
Using premises for prostitution is also a criminal act under Section 155 which provides that if it is made to appear that there is reason to suspect that any house or any part of a house is used by a woman or girl for the purposes of prostitution then the owner is guilty of a felony.
It further gives police power to obtain a court warrant to search the house if it is suspected that any person residing in or frequenting the house is living wholly or in part on the earnings of the prostitute, or is exercising control, direction, or influence over the movements of the prostitute.
Under the Penal Code, the punishment for engaging, abetting, promoting, or leasing premises for prostitution is punishable by three years in jail.
However, if the Bill sails through Parliament and gets MPs' approval, owners of premises where prostitutes practice their trade will be at peace since it strips the police power to obtain warrants to search the premises.
The Bill does not, however, seek to legalize prostitution but to make it a lesser crime that should not be punished by a jail sentence.
Under the Draft Bill handed over to National Assembly Speaker Moses Wetang’ula, prostitution will remain a criminal offense categorized under petty offenses and not punishable through imprisonment as has been the case before.
The punishment will involve the use of verbal sanctions, conditional discharge after arrest, probation for a definite time period, community service, and attending a rehabilitation centre.
There are over 100,000 women who are surviving on sex work, according to a recent report by Kenya Sex Workers Alliance.
Even so, about 25,000 are getting some support including legal services from the Bar Hostess Empowerment & Support Programme (BHESP), an organization for the Key population, women using drugs, and bar hostesses in Kenya.
The group’s Advocacy Manager says for a long time police have been using vague laws to arrest sex workers, noting that the current debate to legalise prostitution is long overdue citing that the Constitution does not outlaw sex work.
Instead, she says the police officers have been using bylaws to arrest sex workers as is being witnessed in some towns.
“What they are targeting is the proceeds from the sex work but nothing to do with the law because the Constitution does not have provision on outlawing sex work,” the advocate explained.
The advocacy manager downplayed the current talk about legalizing prostitution explaining that sex workers don’t need rehabilitation centre but to operate without being harassed by police.
Another paralegal explained that sex workers are all over because of the hard economic times that we are all facing.
“Some ladies make good money from it, in other parts of the world it is a big trade that is legit,” she noted.
Whenever arrested, the sex workers are normally slapped with charges such as loitering with intent, hawking, creating disturbance, and urinating in public. Meanwhile, the church has come out to oppose the move to legalize prostitution citing that this will plunge the country into immorality and lawlessness.
Bishop Hudson Ndeda, the chairperson of the Church and Clergy Association of Kenya, says some recent decisions by the Judiciary are disingenuous.
The Bishop said to challenge this, the religious groups are working on a petition seeking the removal of judges.
“We are wondering what is wrong with the judiciary. They started with ruling on same-sex marriage and now this issue of legalizing prostitution,” Ndeda responded.
Adding that, “ We as the religious group do not support that, it is immoral, and we will petition Judicial Service Commission for the removal of judges pushing for that,”
Ndeda said at the moment some streets have been taken over by sex workers, thus allowing the trade will make things change from bad to worse.
Renowned advocate Charles Kanjama argues that the proposal arises from a largely liberal view of human rights, a largely transactional view of marriage, and a mainly process-driven perspective of moral & cultural values.
He observed that a more values-focused approach to human rights that embraces an essentialist view of marriage and respect for moral and cultural values is called for.
“Our approach should favour upholding moral and family values and upholding positive aspects of our culture. Just 15 days ago we were commemorating our national Culture Day,” he observed, adding, “Human rights have their course, but don’t you think we will see more young people drop out to indulge in sex work? There’s this notion of “I cannot work hard to earn peanuts while there’s an easy way to make money”. Additional reporting by Aloys Michael.