The trade in Kenya, which is classified under the Penal Code, Sections 147 to 154, is illegal in Kenya and calls for stiff penalty.

But even though the law is clear on commercial sex work, regardless of gender and affiliation, the general belief is that it is mostly the women who engage in it and who are arrested by police when caught.

If, for example, the law against prostitution and any form of illegal sex trade were to be truly enforced, then even people who solicit the services are as culpable and ought to be charged with violating the law.

Victimised and harassed

Human Rights lawyer and director of the Urgent Action Fund Betty Murungi is concerned that women working as commercial sex workers are more often victimised and harassed, while the men who demand the services go scot-free.

“Every Kenyan is entitled to protection by the law as a citizen,” Ms Murungi says.

However, because prostitution has been criminalised, sex workers do not have access to legal mechanisms for their protection, and often find themselves harassed by the same agencies that are supposed to protect them.

“The majority of sex workers have been women, but the dynamics of sex work has changed dramatically over the past few years, with males emerging as a significant block of sex workers.”

Police arrest women for “loitering, idling and being drunk or disorderly, she adds. “One cannot be arrested for prostitution per se. The law criminalises the procurement of and permitting prostitution as well as living off the proceeds.”

For instance, Section 153 of the Penal Code, cap 53 points out:-

--Every male person who:

a) Knowingly lives wholly or in part on the earnings of prostitution; or

b) in any public place persistently solicits or importunes for immoral purposes, is guilty of a misdemeanour; and in the case of a second or subsequent conviction under this section the court may, in addition to any term of imprisonment awarded, sentence the offender to corporal punishment.

--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.

This is the contradiction which Ms Murungi says needs to be addressed to encompass the men who seek prostitutes’ services.

“Never will you see police arrest the men who solicit or pay the women, or people that live off the proceeds of sex work,” she says.

So will police arrest the children of prostitute mothers?

“I don’t think so,” says the lawyer. “This law is archaic and needs to be changed to reflect that these women have rights and are entitled to accessing the law’s protection as well as health services, which they are currently unable to access due to fear of stigmatisation and arrest.”

There are also prostitutes operating in high-society situations, such as escorts, who will not openly solicit for sex for a fee in the streets. They have well established and secure arrangements to do this.

This type of sex worker is not the one who gets thrown onto police lorries during swoops.

According to Ms Murungi, the discrimination against the lowly sex worker in the streets as opposed to her more sophisticated colleague in the upmarket estates ought to be changed.

Sexual Offences Act

The new Sexual Offences Act 2005 is an advanced piece of legislation. It does not criminalise the sex work of adult women or men. It criminalises the procuring and permitting of prostitution by children and mentally impaired people.

Prostitutes operate under very unfavourable conditions, the law notwithstanding.

“Many are brutalised by clients, some of whom refuse to pay for services rendered and beat the women.

Others refuse to have protected sex, leaving the women exposed to sexually transmitted diseases.

“In Senegal where sex work is legalised, prostitutes carry trade identity cards and frequently updated health certificates,” says Ms Murungi. “They also have access to reproductive health services.”

She adds that prostitutes in the West African country are entitled to all protection by law, and since the legalisation of trade about 15 years ago, it has gone down rather than up as would have been expected.

Daily Nation, Kenya