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    Saturday, 4 March 2017


    Due to the influence of patriarchy, in almost all locations this concept has a bias towards one sex. It therefore refers to'ladies of the night' –not witches, of course, but women who have commercialized their private   anatomy. It is quite strange indeed, but not surprising in this male-dominated society, that we also have some males who have transformed their private anatomy into commodities, yet they are not branded as such. And this becomes a gender related Human Rights issue (unfair discrimination).   In most jurisdictions this practice is regarded both immoral and illegal. Because of the associated stigma and illegality of this trade, it is normally connected with and flourishes at night in beer-halls\gardens, shebeens or any other dark spot but nowadays, even in the heart of noon.
    Contrary to the myth that these people come from poor backgrounds, research has shown that even well-to–do women and children who hail from stinking rich families are also peddling their flesh. Many reasons account for this: sexual adventurism; frustration in marriages and the attendant high rate of divorces; poverty; the drive towards freedom or Human Rights; peer influence and demonic inspiration, among other causes.
    The rise of the internet has made prostitution much easier and more accessible to the masses than was the case yesterday. Previously this trade required direct interaction between the sex-worker and the client. This often involved prostitutes standing in a public location waiting for someone to approach and solicit them for sex. Alternatively, a group of prostitutes might congregate in a single building, called a brothel, to which clients would converge .These conditions were difficult for sex workers to participate in given the relatively public nature of the solicitation and the reluctance of clients to engage them for fear of the legal consequences. Indeed these methods were relatively easy for Police to monitor and for legislators to outlaw. The internet, on the other hand, allowed anyone with an internet connection to offer sex services almost anonymously, screen potential prostitutes\clients, and avoid law enforcement agents. It has led to an explosion in the sex trade, a vice that lawmakers have struggled to regulate. This has also been exacerbated by internet pornography----sex boom. As can be deduced, the internet has not only changed prostitutes' modus operandi but also made these methods more sophisticated.
    Most Afro-centric historians are blaming capitalism, colonialism, urbanization and or Westernization for all African evils, adding that the concept 'prostitution' itself is a foreign one as it negates our culture. The evil of prostitution, goes the argument, was introduced into Africa by Westernization, in general ,and now Americanization ,in particular, which is being exported everywhere , while masquerading under the guise of globalization. In his book 'Things Fall Apart ', Chinua Achebe unveils this development (erosion of the African way of life) and asserts that, as a result, people are 'No Longer At Ease'. Urbanization meant husbands had to or were forced by colonialism to go into towns to commercialize their labour power while wives remained in the rural areas minding homes. But these husbands are only human and had to respond to the calls of nature-sex. And prostitution became a necessity. This is the same ground of justification invoked by those who chose a life of celibacy but would also want to exercise their God-given right to intimacy since our laws do not compel anyone to marry! Therefore, ladies in surrounding areas had to offer that service by becoming prostitutes. According to that reasoning, these prostitutes later on apprenticed the little ones and that is the root cause of the problem. And in isolated cases even their wives at home also succumbed to the irresistible calls of nature and therefore ended up rendering the sexual service or letting in 'traffic' to intruders! It is this urbanization that, again, contributed considerably towards the disintegration of the extended family system\network.  Euro-centric writers, on the other hand, contend that this problem has always been there and everywhere ever since the origins of mankind (Judges 16:1; Joshua 2:1-2; Luke 7:36-50).In fact Rahab, a prostitute in the Bible, also happens to be in Jesus Christ's line of ancestry.
     Really an exotic concept? The tendency of apportioning blame on someone else for one's fail\ings\shortcomings spans far back into history since time immemorial and hence in Genesis 3:12 we see Adam blaming Eve for their having eaten the forbidden fruit.
    These people have encountered problems of various description and our African Laws, in general, and Criminal Law, in particular, do not seem to protect them at all. This work has a strong bias towards Criminal Law.
    As pointed out earlier on, the problem with this trade is that it is considered  not only immoral but  illegal as well in most jurisdictions and  the issue of morality is highly regarded in Africa .This is understandable because law-makers are influenced by their society's morals and hence the co-relationship between law and morality. And African Customary Law, also, is indeed rooted in morality. But values are like beauty which lies in the eyes of the beholder! They are either relative or situational and no one is qualified to assert that he has better values than his neighbour's or that another person 's sexual preference is deviant, adding that his is normal. The question to ask is whose and which standards are in use and what is deviance? To make matters worse, African Human Rights concerns emphasize so much on Group Rights that they tend to trivialize those of an Individual, which is why the South African Constitution provides for the Spirit of Ubuntu\Unhu.
    And what is the position of Religion and or Religious Law? As pointed out earlier on, African Law is totally opposed to this practice as it owes its parentage to or complements African Traditional Religion. This equally applies for Christianity, Judaism, Islam, Hinduism, Confucianism, Buddhism, etc. Other religions, on the other hand, are tolerant and examples are Satanism and Baalism (Baal is the Canaanite god of fertility)but such religions are not only very few but belong to minority groups as well. This writer is well convinced that even Eros,the Greek god of poking ,would not support prostitution.
     As such, ladies of the night are in a weak position to exercise or assert their rights, even when abused. And members of the community take advantage of this helplessness to abuse these people. Day in and day out Prostitutes' rights are violated and they do not litigate because of the nature of their job which has been criminalized. To date Nevada is arguably the only country (state) in the American States that has legalized prostitution. Other countries in the World which permit this practice include Argentina ,Austria ,Armenia , Belgium ,Bolivia ,Brazil ,Canada ,Chile ,El Salvador ,Finland ,France ,Greece ,Guatemala , Mexico , the Netherlands ,New Zealand ,Peru ,Portugal ,Senegal ,Slovakia  ,Turkey and Switzerland .Elsewhere  countries are either indifferent or  totally outlaw it, as is the case with African countries like Botswana and Zimbabwe. South Africa  ,in particular , outlawed this trade as far back as 1957, through the Sexual Offences Act. As can be seen from the number of countries above , Western Communities are a bit more tolerant to this trade than their African counterparts.  
    Prostitutes are often  sexually exploited in that they do not get payment that is proportional  with –to services they would have rendered and are at times  out-rightly denied  any payment at all .Related to this issue is the fact that some crooked  man could just stay with the lady ,under the pretext that he wants to marry her ,only to kick her out whenever it has become convenient to do so .It is not uncommon that at times clients deliberately infect them with the HIV virus by choosing not to use protection. Also, these people are often beaten up, at times burnt or even killed by either their clients or clients' spouses.
    Apart from physical abuse such as violence or uninvited fondling of the prostitutes' bums, these ladies are also subjected to emotional and psychological abuse. Examples are whistling , passing unwelcome remarks about their  bums  or physical attributes ,in general  .Due to desperation and or acting out of duress,  some prostitutes have been compelled  to  be intimate with dogs ,get involved in pornography and other unnatural  and degrading sexual activities .All this behaviour  amounts to a serious invasion of the ladies ' constitutionally guaranteed right to human  dignity(how one values herself)(see section 51 of the  Zimbabwean Constitution) and reputation(one's estimation in the eyes of the world). Others are  lured  into brothels or tricked to go into other countries to serve as sex slaves while fattening another person's purse.Rape cases against prostitutes are common Human Rights violations but law enforcers choose to trivialize them; maybe  they erroneously think that such ladies do not have a right over their bodies. 
    It is really ironic that these ladies are stigmatized, given derogatory names such as bitch (a she- dog that is known to be extremely sexually receptive) and' ladies of the night 'and ostracized and yet there is a ready market for that trade. It is really unfortunate, again, that it is only women who get this adverse treatment and yet it takes two to tango. It is for this simple reason that MALE 'PROSTITUTION'\PROMISCUITY IS TOLERATED. But is it not hypocrisy to condone a given practice by one sex only to condemn it when exercised by another sex? Because of these double-standards, anti-prostitute groups target women only.
    Absence of UNIONS OF PROSTITUTES, just like teachers and all other trades increases the vulnerability of these 'ladies of the night' as there is no common voice in their grievances.
    Toddlers, who have joined this trade, need protection from the law. The legal age of consent should apply to all people, including prostitutes, and anyone who gets intimate with them must be convicted of statutory rape or defilement as provided by section 147 of the Botswana penal code. Currently this is not happening! Even Section 78 of the Zimbabwean Constitution does not prohibit mere carnal knowledge of, but taking the hand of an under-aged person in marriage. And the implications are self evident.
    It is also very disturbing, indeed, that law enforcement agents, also, cannot go unaccused in this regard. They have gained notoriety in abusing these prostitutes. This issue needs to be detailed.
    Fortunately or unfortunately the practice of apprehending women loitering at night was overturned in such countries as Zimbabwe, where the Constitutional Court held that it was against the Bill of Rights issue, especially freedom of movement and the non-discriminatory section (see section 15 of Botswana's Constitution), as it targeted women only while males loitering and male sex predators were left scot free. Added to this problem is the fact that the practice enhanced increased sexual exploitation of apprehended women, especially young ones, by lecherous male police officers, as a precondition to let them off the hook of the law.
     Though the wording of most countries Criminal laws clearly states the crime of 'loitering for the purposes of soliciting for sex---', our law enforcement agents deliberately choose to see 'loitering '(lingering or standing about idly) only. And our usually overzealous police officers tend to forget that mere loitering, per se, is not criminal but what is criminal is the motive behind it, ie to solicit (asking for or trying to obtain sex) for sex. If we were to rely on 'loitering' only the question is how are 'ladies of the night' identifiable in a democratic society that upholds freedom of movement and dressing? Do they have a characteristic feature that sets them apart from 'normal' people or are they branded on the ear like cattle?.It must be borne in mind that dressing, if it is the basis of the arrests, has nothing to do with whether or not one's conduct is decorous! Again- having an evil intention to commit the crime of prostitution, on its own, is not criminal unless that evil intention has found expression in outward conduct. And the conclusion that could be drawn is that this legal provision 'for the purposes of soliciting for sex—'is terribly flawed unless it was worded' loitering and or while soliciting for sex'.
     The basis of this writer's submission is that we often form evil intentions but later on abandon them before the commission of the offence and there is no guarantee that the offence will be committed thereafter. Which test is used to gauge 'the purpose', objective or subjective? Is this a formally or materially defined crime? Unlike a materially defined crime that focuses on results, formerly defined ones are preoccupied with prohibited conduct only, irrespective of the outcome. The objective test pertains to negligence and not intention. One's intention can only be clear or inferred post facto ( whether dolus directus ,dolus indirectus or dolus eventualis) and not before the act (in this case ,to solicit for  prostitution ) since people can easily mistake  one's intention. Alternatively, one might have made a confession or admission, confirming the evil intention. This is the crux of the presumption of innocence clause in our law , a clause that says in the absence of any evidence to the contrary ,one is presumed innocent till proven guilty or has made  a confession (see section 70:1a of Zimbabwe 's Constitution). The police, therefore, have to set a trap and catch the prostitute red handed. Yes our speculation, pertaining to another person's intention, might be quite intelligible but not necessarily reflect what is on the ground. No doubt, the Mischief Rule could be applied in cases of this nature and the loitering ladies could be held liable if the mischief to be attended to is prostitution that has become rampant, and not just loitering alone (see the English case of Smith v Hughes (1960) E- Law Resources). But only after the culprit's purpose has been established or if caught red-handed!
    And I need to clarify that most countries do not have in their laws express provisions which prohibit prostitution, on its own, but, rather, soliciting for the purposes of prostitution. That being the case, one cannot be prosecuted for merely being a prostitute till she starts marketing her trade!  
    On the other hand, there are other pieces of legislation, and even the Common Law, which protect prostitutes. Such provisions include  the ones on rape , a crime which can be perpetrated against anyone and by any person (see sections  141 and 142 of Botswana 's Penal Code), and prostitutes are no exception;defilement concerning the youthful ;laws against pornography  and the one on those who deliberately infect others with the HIV virus. The Bill of Rights component of the Constitution is also handy in this regard. The problem, however, lies with both the interpretation and   enforcement of these laws.
    In civil matters could a prostitute drag her client to court for breach of contract (Law of Contract) or invoke the Aquilian Action for patrimonial\pecuniary loss or the Injuriarum Action for sentimental loss under the Law of Delict in cases concerning her trade? What does the Law of Unjust Enrichment say in this regard?
    What is the modus Vivendi then?
    The first step is to empower these ladies with education so that they are in a better position to know and assert their rights .For example, acting in solidarity, they could launch peaceful national or global demonstrations while carrying placards , demanding for their rights   . Knowledge is power. Trade unions, feminists and other Human Rights groups also need to fight for the rights of such people and, over and above that, we need specific legislation that protects prostitutes. All public places must have a free provision of condoms, not just for males but females as well. Members of the community need to be informed so that they don't stigmatize 'ladies of the night'. And forcible or deviant casual sex by clients must be criminalized. These changes must be revolutionary, and not evolutionary, and women must be at the forefront in this fight. No doubt, men would not want to see a change in the current statuesque since they stand to benefit in that arrangement. Any request for assistance from men will surely 'court' their (males)  resistance .The law against prostitution must obviously be declared  unconstitutional as it infringes  upon one 's freedom of association and the right to equal treatment at law(Rule of law) .Justice ,according to Plato , would  only  apply  when equals (men and women)are treated equally while unequals must be treated unequally (people and animals of a base instinct). Prostitutes must also be provided with other Fundamental Rights and a classic example that immediately springs   to mind is   medical facilities such as ARVs. Police officers need to be educated on the rights of prostitutes so that they enforce them and punish those who abuse these ladies.
    As can be seen, the plight of these night ladies must be everybody's concern and the concluding remark is that we need positive changes as early as yesterday.

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    Item Reviewed: WHAT IS A PROSTITUTE AND DOES THIS TRADE HAVE A MORAL AND OR LEGAL JUSTIFICATION - Opinion Piece Rating: 5 Reviewed By: Webmaster
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