Mbabane: Besides being against traditional and cultural norms, sex work is not a crime.
In a booklet that is being circulated by an NGO known as COSPE titled “Know Your Rights, Sex Work and The Law in Eswatni ” it states that “sex work is not a crime and sex workers are not criminals” police cannot arrest anybody simply because he is a sex worker, or being associated with sex workers.
The booklet points out that there is an outdated piece of legislation, the crimes act of 1889 which is often used against sex workers. The law criminalizes the act of loitering in public for the purposes of prostitution.
This has sparked a series of conversations amongst citizens in the country. Some could suspect that the recent reports of notorious sex work activity could be a result that sex work is no longer considered as a criminal activity.
Sexual Offences and Domestic Violence (SODV)Act Lawyer Mzwandile Masuku was once quoted in a media workshop saying he cannot ascertain whether or not sex work in the country was legal or not.
He mention that nowhere in The SODV Act does it mention any criminality of sex work. Masuku said back in the day’s police will successfully arrest and charge sex workers on the old act, which allowed police to arrest people for loitering for the purposes of prostitution.
With the recent legislations police have found it hard to charge people for the loitering for the purpose of prostitution. The SODV act has abolished the old act, which was seen a barrier to freedom of movement especially for females.
As written in the booklet, the offence violates sex workers right because it places responsibility to a person accused of loitering to explain what they are doing. This, according to the booklet is against the constitutional right to be presumed innocent. The offence committed in this act allows traditional courts to deal with the accused which then deprives the person’s right to fair hearings, and the person is denied a lawyer. By so the booklets mentions that sex workers according to this law then become vulnerable to abuse and harassment by police.
The Sexual Offences and Domestic Violence Act of 2018 do not apply to sex workers themselves, thus it does not criminalize sex workers or its clients yet it does creates some offences relating to sex work.
The SODV act prevents sex workers from being exploited as it criminalizes Commercial Sexual Exploitation, which its states clear that it is an offence to try to benefit from forcing someone to have sex with other person.
The SODV also criminalizes procuring of prostitution, benefiting from prostitution, keeping a brothel among others.
Recent reports from the media has shown that a number of organizations who are in the fight against HIV and AIDS have taken a step to support marginalized groups which includes sex workers.
Organizations like the Alliance of Mayor’s Initiative on Community Action on AIDS at The Local Level (AMICAALL) has taken future steps to ensure that sex workers and other marginalized group have access to health services. This has been seen by the organization pledging to have a medical facility that will give free access to health facilities for sex workers and other groups. This facility is said to even operate after hours for sex workers to be able to access service, this the organization said it will help in the fight against HVI/AIDS.
It has also emerged that sex workers are amongst the marginalized groups which are vulnerable to diseases like HIV/AIDS and are sometimes discriminated. This was also disclosed by the UN Resident Coordinator, Ms. Nathalie Ndongo-Seh at the National Commemoration of the 2019 World Aids Day.
She said “Data shows that Data shows that more than half of the people infected with HIV belong to populations marginalized by discriminatory laws, policies and stigmas. These include men who have sex with men, transgender women, sex workers, their clients and partners, and people who inject drugs.”
She said the UN Secretary-General observes that, despite the commendable progress seen in recent years against the HIV pandemic, including in rising numbers of people diagnosed and treated accompanied by dropping rates of incidence and death, there are still unmet needs and gaps.
By Nhlanhla Ngwenya