FROM PROSECUTION TO PROTECTION: THE DECRIMINALIZATION OF SEX WORK IN KENYA

In the heart of Nairobi, where the city’s rhythms merge with the vibrant pulse of its inhabitants, lies a story of transformation and empowerment. Recently, the National Committee on Criminal Justice Reforms (NCCJR) presented the Penal Code (Amendment) Bill, 2023 to the Parliament. Among others, the Bill boldly advocates for the deletion of sections 153, 154, and 155 of the Penal Code. This will remove the criminal sanctions attached to sex work.

The Justice and Legal Affairs Committee meeting with the National Council on the Administration of Justice to discuss the review of the Penal Code and the Criminal Procedure Code

The prohibition of sex work has had far-reaching consequences for sex workers over the years. It exposes them to harassment by law enforcement officers, and prosecution for other administrative offenses like loitering, and increases their vulnerability to violence, extortion, and health risks. Regional studies show that 40-70% of sex workers experience violence in a given year. Closer Home a 2015 study by the Kenya Sex Workers Alliance (KESWA) found that approximately 40 sex workers are murdered in a year. 

Criminalization encourages a culture of impunity such that sex workers are reluctant to report the crimes committed against them due to the fear of arrest. This fear is compounded by the tendency of law enforcement officers to ignore, abuse, chastise, and humiliate sex workers when they report such cases as they are often viewed as ‘criminals.’ For example, a respondent from KESWA to a 2016 research by Amnesty International narrated her experience as follows:

‘Every time I come forward to report violence, I end up threatened to be arrested and prosecuted for prostitution…Next time I suffer violence, I sure as hell won’t report it.’

The Bill has thus come at an opportune time when sex workers are in dire need of protection. To begin with, decriminalization will empower sex workers to realize their right to work safely and to use the justice system to seek redress for abuses and discrimination. They will no longer have to hide and provide services in clandestine locations that increase their risk to violence. Law enforcement officers will no longer have the backing of the law to wield power over sex workers and abuse them. Threats of arrest will no longer hold water. Perpetrators of violence against sex workers will be deterred as sex workers will now be in a better position to access justice. 

Studies show that in states with similar laws such as South Africa and New Zealand, sex workers experience increased empowerment, reduced violence, and lower rates of HIV/STIs. Esteemed organizations including the WHO, UNAIDS, The Lancet, Open Society Foundations, Human Rights Watch, and Amnesty International support this approach.

The passing of this Bill will thus put Kenya on the right track towards achieving the tenets of the Constitution of Kenya, 2010; recognizing and realizing the human rights of all Kenyans. The decriminalization of sex work will mark a pivotal moment in our history where we challenged old norms and ushered in a new era of dignity and rights for all.

Maria Nambuya

Logistics Coordinator

Amka Africa Justice Initiative