Prostitution is not an offence in Zimbabwe, but a lifestyle and the recent Constitutional Court ruling simply set parameters to guide police when effecting arrests on suspected solicitors of paid sex, legal experts have said.
The Constitutional Court on Wednesday banned the arrest of women on charges of soliciting for intimacy in the absence of male customers confirming they were offered the service for a fee.
Harare lawyer Mr Vote Muza said the availability of the latest ruling by the court on prostitution could never be seen as legalising prostitution.
“We should never lose sight of the fact that gave rise to the Constitutional Court ruling. Historically, police were in the habit of arresting women indiscriminately and the ruling must be welcomed to a great extent as it now makes police to be more careful when trying to identify suspected prostitutes.
“My view is that there has been no indirect legalisation of the oldest profession, rather the ruling has come in handy to protect the rights of women, particularly against wantonly, indiscriminately and malicious arrest of suspected prostitutes,” said Mr Muza.
Advocate Tawanda Zhuwarara, who represented nine women that contested arrest for allegedly soliciting for prostitution under Section 81 (2) of the Criminal Law (Codification and Reform) Act, said the police were simply arresting women through profiling and without any evidence.
“The days of dragnet arrests are now over. The practice by the police of arresting women generally for just being in the Avenues area at certain times without any evidence proving soliciting is not proper arrest.
“A person can only be arrested for soliciting for prostitution after two things have been alleged by the police and the two are:
1 Who the suspect was soliciting?
2 How the suspect was soliciting that person?”
Adv Zhuwarara said the police were literally imposing an illegal curfew on women in violation of their rights.
“The result of what the police were doing prior to the court order was akin to enforcing a curfew on women by simply arresting them for merely being in the Avenues area along streets at certain times of the day.
“That amounted to infringement of their rights to movement, association and liberty,” he said.
Another lawyer Ms Jacqueline Sande said: “The court decision is a score for women rights because by virtue of being in the streets, women were presumed to be loitering for purposes of prostitution, which is not always the case.
“If the police want to prevent theft, they cannot just get into the streets and arrest every person they find there.”
Ms Chiedza Simbo, a PHD law student at the University of Zimbabwe, said prostitution was not an offence but rather a lifestyle, which must be respected and protected in terms of the law.
“The court upheld the rule of law by making it clear that the arrests should be done in the confines of the law rather than perception, views and morals,” she said.
“It shows that prostitution should not be a criminal offence but rather a choice of a lifestyle.”
Bishop Johannes Ndanga of the Apostolic Churches Council of Zimbabwe, said the law needed to be amended to enable the police to arrest commercial sex workers and to curb the spread of HIV and Aids.
“The law is the problem and it makes it difficult for the police to effect arrests.
“As the church, we are moving for the amendment of the law to empower the police to arrest the suspected prostitutes without violating the women’s rights.
“That will go a long way in reducing the spread of HIV and Aids and other sexually transmitted infections,” he said.
Another legal expert Mr Farai Mutamangira said: “The country has arrived in its effort to usher under the new Constitution, a broader protection of human rights by venturing into areas of human rights, which are easily controversial and defining a broader protection of freedoms.”
The nine women who brought the case to the Constitutional Court were arrested on March 17 last year in the Avenues area on allegations that they were soliciting for paid sex.
They were taken to the Harare Magistrates’ Court where they were placed on remand.
Before their trial, they unsuccessfully applied for exception to the charge before mounting a constitutional challenge citing infringement of their rights.
The court on Wednesday freed them after the National Prosecuting Authority admitted that the arrest and prosecution amounted to a violation of the women’s rights.