Analysis

Positive indications are that the ANC does not support total decriminalisation of the system of prostitution

By Nozizwe Madlala-Routledge

  1. ANC resolutions at the 54th conference

Despite media reports that the ANC at its 54th Elective Conference had called for the decriminalisation of “sex work”, this is not the case. Instead, the ANC has called for a process to determine the societal norm, and states that “sex workers” must be protected.

 Resolution 2.28 states:

The calls to decriminalise Sex work must be subjected to a high-level discussion and engagement with relevant multiple stakeholders, and to continue to engage society on this to determine the societal norm. Sex workers must be protected.”

There are many other resolutions from the ANC conference that show the ANC would not support total decriminalisation. Patriarchy perpetuates prostitution and prostitution entrenches patriarchy. The ANC has always maintained that patriarchy divides society and must be combatted in all its forms. The ANC has called for gender-stereotyped socialisation of girls and boys to be addressed to build social cohesion.

2.The High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change Report Recommendations.

The High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change was established by the Presiding Officers Forum and former President Kgalema Motlanthe was appointed to lead the Panel. Embrace Dignity made a written and oral submission to the Panel. The Panel addressed the issue of adult prostitution under gender equality and gender based violence. The Panel observed that:

 “Currently, South Africa’s legislative framework concerning prostitution is one that declares it illegal. However, the law does not protect those who sell sex, often out of necessity, making them vulnerable to abuse by their clientele or the police, stigma, unfair discrimination, random arrests, the denial of medication, violence and exploitation, as well as driving prostitution and those who sell sex to the periphery of society. A number of organisations stated in their submission to the Panel that, among other things, the Act drives prostitution and those who sell sex to the periphery of society. Here they experience stigma, unfair discrimination, violence and exploitation. The arrest of those who sell sex for acts that they have not committed (under municipal by-laws) where they are fined is abuse of the law to deliberately persecute a specific group of people (unfair discrimination and violation of the right to equality before the law). There are cases of poor health care services provided to those who sell sex from public health facilities due to stigma and discrimination by health care workers; and criminalisation of prostitution leads to high levels of abuse by the police, including requests for free sex in exchange for not arresting, displaying of photographs of suspected prostitutes in police stations, and placing of transgender women who sell sex in male cells.

 The Panel recommended that:

Parliament should use its powers to introduce the following legislative changes to the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 with regard to protecting those who sell sex:

  • the Act should be amended to decriminalise prostitution in order to remove the unintended consequences arising from the criminalisation of prostitution for those who sell sex; and
  • other legislative provisions contained in national, provincial and municipal legislation criminalising prostitution for those who sell sex or making it an offence should also be amended. “

 3. Minister of Justice, Michael Masutha released the SALRC Report and asked for public dialogue on the law on prostitution. In his media statement, he stated that South Africa still does not have a strategy for dealing with the complex issues around prostitution. His full speech is on the Department of Justice website. The fact that the SALRC was not asked to include total decriminalisation in its investigation indicates that Masutha does not support total decriminalisation. In addition, he is quoted as saying: “Looking at it of course from a South African perspective, looking at where we have high rates of poverty and looking at all these factors and what would be best suited to South Africa and they are essentially finding that decriminalisation is not suited or the best ideal for South Africa.”

4. The NCOP does not support total decriminalisation.

In June 2018 it unanimously adopted the Embrace Dignity Petition Report and the Study Tour to Sweden Report and called on the Minister of Justice to study the reports and consider the Swedish Model for dealing with prostitution. This was in response to the Embrace Dignity petition. In 2014 Embrace Dignity petitioned parliament to set up a multiparty ad-hoc committee of both houses to investigate the harms of prostitution and legislative frameworks that would address these harms.

5. The Multi-Party Women’s Caucus has not taken a position to decriminalise prostitution.

Despite media and public statements by the Chairperson of the Multi-Party Women’s Caucus in support of total decriminalisation, the Caucus has stated publicly that it has not adopted this position. Instead, it has called for more public consultation on this issue and the Caucus has stated that those who came to the Summit and called for total decriminalisation do not represent the totality of our people.

Nozizwe Madlala-Routledge is co-founder of Embrace Dignity http://embracedignity.org.za/

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