Sex workers and their rights

Jackie has been verbally, sexually and physically assaulted by her clients on numerous occasions and has had to bear it silently because she had nowhere or no-one to turn to.

Jackie is a hairdresser working in one of the many salons in Ongata Rongai. She is an expert in braiding hair and an asset to her employer. She is a mother of four and is living with HIV.

She recently had an abortion which to her was a necessary evil because she cannot afford to feed and take care of another child but mostly because it is bad for business. Jackie also works as a sex worker to supplement the little income that she earns at the salon.

Jackie has been verbally, sexually and physically assaulted by her clients on numerous occasions and has had to bear it silently because she had nowhere or no-one to turn to.

Despite her positive status some of her clients have physically assaulted her to have unprotected sex, while others have opted to pay her more than the agreed amount to forgo the use of a condom. In both these instances she is highly aware of the risks involved but because she only thinks of her children she allows herself to be exposed to re-infection and other STIs and consoles herself saying she did what she could but the client refused – after all she has nothing to lose.

She was once sexually and physically abused by a client and the neighbours came to her aid however when she went to report this incident, she was raped again by the officer on duty.

“I cried and cried to him to leave me because I was HIV positive but he didn’t listen to my pleas, he raped me several times and then let me out into the night.” She recalls, “Do I regret this incidence? No, I don’t he received instant justice – ‘ni shauri yake!’ (It’s upon him) But I can never go report anything to the cops anymore never!” she vows.

Mercy is also a sex worker who has suffered at the hands of her clients. She once went to report that she had been raped and the law enforcers laughed at her and she was again assaulted and released. “How can a prostitute be raped?” they taunted her.

“When you go to the police to report abuse they laugh at you and say that you deserve it and sometimes they take you inside where they rape you again,” she laments.

Sometimes there is a police round up and when this happens, Mercy and her colleagues are either forced to part with money to avoid being arrested or they offer themselves to the law enforcers as ransom. The officers often refuse to use condoms. Whenever they are arrested and refuse the terms of being released they are taken to the cells where they are forced to clean the cells or do humiliating things in front of other cops, which  Mercy refuses to mention. But eventually it will end up in them being sexually abused and released. Police officers often fine sex workers inordinate sums of money after which they pocket the money.

Sam is also a sex worker who has suffered in the hands of law enforcers. He says his clients are very gentle and understanding but once he was arrested in a round up and he says he will always live to remember that day. The cops forced themselves on him and some inserted bottles in his behind. In the morning he was forced to clean the cells while wearing nothing. He was also abused and called derogatory names. He was taken to court because sex work in Kenya is illegal and more so for him who is a man who has sex with other men.

Most sex workers have reported being abused in the hands of law enforcers and their clients. They have been sexually, verbally and physically assaulted  but unfortunately feel they cannot report these crimes and injustices meted against them because sex work is not only a highly stigmatized occupation but it is considered an offense against morals and a nuisance under Kenyan law.

Sex work refers to the practice of providing sexual services in exchange for money, safety, clothing, food survival needs and other material compensation. The illegal status of sex work has not eradicated prostitution instead it has increased sex workers vulnerability to human rights abuses and created fertile grounds for police exploitation especially for the street based sex workers.

The law in Kenya does not criminalize sex work per se but rather actions associated with it. The Penal Code (S153 and 154) defines two types of offences with respect to sex work – living on the earnings of prostitution and soliciting or importuning for immoral purposes.

Prostitution is not defined or prohibited under the Kenyan Penal Code, rather it criminalizes the actions of parties who benefit from sex work and prohibits the act of prostitution.

The Sexual Offences Act also does not define or criminalize prostitution rather S17 defines the offence ‘exploitation of prostitution’. This means that anyone encouraging sex work with the expectation of gain is guilty of an offence.

So neither the provisions of the Sexual Offences Act and the Penal Code criminalize the practice of sex work. Third parties obtaining financial gain from sex work are the focus of these provisions and not sex workers, who can commit the offences relating to sex work under this legislation. However under S17 of the Sexual Offences Act, the law forbids sexual contact between police officers and those in their custody.

The Kenyan government has obligations arising from the Constitution and international human rights agreement to respect, protect and promote the rights of all its citizens regardless of their status, religion, tribe and background and this includes sex workers.

Sexual workers deserve respect and protection from violence. Law enforcers must ensure that those who have been victims of violence even while committing prostitution will be given assistance and will not themselves be prosecuted for breaking the law. Sex workers are mothers, daughters, sons, and people who need to be protected against the violence associated with their work