Open Society Initiative of Southern Africa (OSISA)

Few people realise that sex work is legal in all southern African countries bar South Africa, which criminalises both the buying and selling of sex. However, the reality is that sex work is still criminalised across the region through laws that target related activities such as procurement, living off the earnings of prostitution, brothel-keeping, soliciting for immoral purposes, committing immoral acts in public, idle and disorderly behaviour, rogues and vagabonds etc.

In some countries, the ‘spread of disease’ or ‘failure to disclose HIV positive status prior to sex’ may also constitute an unlawful sexual act. Even in jurisdictions where selling sex itself is not illegal, law enforcement officers often do not understand the legal distinctions and treat sex workers as criminals.

Punitive laws relating to sex work promote a climate which enables widespread violations of sex workers’ basic rights. This consistently leads to the discrimination of sex workers – for example, through poor access to justice and inappropriate healthcare services. Furthermore, the unwillingness of state actors and stakeholders to engage in meaningful dialogue or conduct detailed research regarding sex work creates additional barriers to appropriate and effective policy formulation.

For years there have been reports of the consistent physical and sexual abuse of sex workers in southern Africa – by both the police and other state actors and members of the public. The laws that oppress sex workers and criminalise various acts also increase their vulnerability to abuse since they are often based on the ‘morality of the majority’ rather than on evidence or human rights.

Strong anecdotal evidence suggests that physical beatings, extortion and rape of sex workers are alarmingly common – and that these abuses are often carried out by the police.

The criminalisation of sex workers also makes it much more difficult for them to negotiate safer sex. Stigma and discrimination at clinics often means sex workers do not have regular access to condoms and essential sexual and reproductive health services. Actors within the public service use the law, religion and culture to subjectively deny sex workers access to treatment, care and support.

And the legal marginalisation of sex workers prevents them from seeking redress for these abuses.

There is an urgent need to address the marginalisation and exclusion of sex workers. The lack of political action and reliable funding to address the needs of sex workers in southern Africa are hindering efforts to effectively respond to their health needs and protect their basic human rights.

And even where interventions targeted at sex workers do exist, these are often confined solely to female sex workers who have sex with male clients, with none targeting male or transgender sex workers.

Sex workers should be recognized as agents of their own lives and bodies. Rather than being punitive, abusive and enabling of abuse, laws should be protective of sex workers. Despite many people’s moral view, sex work cannot be legislated away, especially as it is a legitimate form of work.

The only answer is for laws that explicitly or latently criminalise sex work to be repealed and for sex work to be decriminalised. Only then will sex workers be able to effectively demand their rights – and hope to live their lives free from abuse.