By Solomon Mujakachi
OF late, news headlines screaming in the press make for very sad reading.
‘Car for sex!…hooker takes keys, clothes,’ ‘Man impregnates sex worker (H-Metro, May 2 2016)
How in tarnation do you impregnate a sex worker!
‘Cemetery sex…hookers turn Warren Hills into love nest’ (October 17 2015).
More revealing is a story in the Weekend Post of October 24 2016 headlined, ‘Prostitutes terrorise the Avenues’.
The list is endless.
Prostitution is the oldest profession in the world.
Society frowned, and still frowns, upon this practice in Zimbabwe.
In the Bible, the punishment was stoning.
Scriptures on prostitution abound in the Holy Book, but what readily come to mind are the Gospels of Luke 7; 36-50 and John 8;1-11.
Jesus felt pity for these women, for they were trapped in sin.
However, the purpose of this discourse is not to pontificate on the non-virtues of prostitution, but rather to interrogate whether the landmark ruling of the Constitutional Court (ConCourt) of May 26 2015 is being interpreted in the letter and spirit it was intended.
On May 26 2015, a judgment was handed down by Deputy Chief Justice Luke Malaba, sitting with eight other judges of the ConCourt.
In this judgment, the ConCourt ruled that the arrest and prosecution of nine women on March 17 2014 in the Avenues area in Harare by police during an operation code-named ‘No to Robberies and Prostitution’ was unconstitutional.
This event was wildly celebrated in the Avenues area.
According to an H-Metro issue around that period, Harare prostitutes were offering free sex to regular clients as part of celebrating the ConCourt ruling that police should not arrest women on allegations of loitering for purposes of prostitution.
Under the headline, ‘Prostitution a lifestyle, not criminal’ in The Herald of May 29 2015, a Harare lawyer, Vote Muza, is quoted as saying: “We should never lose sight of the fact that gave rise to the ConCourt ruling.
“Historically, police were in the habit of arresting women indiscriminately and the ruling must be welcomed to a great extent as it now makes police to be more careful when trying to identify suspected prostitutes.
“My view is that there has been no indirect legislation of the oldest profession, rather the ruling has come in handy to protect the rights of women, particularly against wanton, indiscriminate and malicious arrest of suspected prostitutes.”
While the learned Muza gives a fair and sober opinion of the situation, the headline missed the whole issue to the point of misleading.
Equating prostitution to a lifestyle is the sort of reckless reportage that opens doors for sneaking in such anti-social behaviour like homosexuality as a lifestyle.
Advocate Tawanda Zhuwarara, who represented the nine women who contested arrest for allegedly soliciting for prostitution under Section 81(2) of the Criminal Law (Codification and Reform) Act, said the police were simply ‘arresting women through profiling and without any evidence’.
It is distressing, dehumanising, embarrassing and degrading for a married woman, a professional woman or simply any woman not involved in prostitution to be arrested on allegations of loitering for the purpose of prostitution.
While the ConCourt’s landmark ruling should be commended, it should, however, not be taken as an endorsement for prostitution.
Under the Zimbabwean law, prostitution and its evil twin, homosexuality, have not been decriminalised, neither are they lifestyles.
And nowhere in the legal arguments surrounding this case do our learned friends, the lawyers, attempt to venture into the minefield that constitutes the legality of prostitution.
They know the devil is in the detail.
So, while the prostitutes are riotously celebrating the handing down of the judgment, they have conveniently forgotten the process.
More specifically, they have subordinated the process to the event, regrettably with police duplicity.
The screaming headlines cited above say it all.
Prostitutes now rule the Avenues of Harare.
Shiri yabvuta rekeni –the monkeys have taken over the zoo – with the police acting as instutionalised pimps.
When the prostitutes accost potential customers on the streets for an agreed price, they, however, shift goalposts once inside their lairs.
Not only do they want it all, they violently take it all (the money of course).
Remember they have no reputation to lose, while the client has everything to protect – reputation and all.
In some extreme cases, these same prostitutes have cried ‘rape’ where a deal has gone sour, leaving the burden of proof or disproof on the client.
I shall not go into details of the modus operandi, reports in the papers say it all.
Suffice to say, a few ‘bold’ victims have sought recourse at law and found it.
But herein lies the paradox.
One of the tenets of the law of contract says any contract based on an illegality is null and void.
Not only is it voidable at law, it is downright illegal.
This is like someone who sells marijuana, has his stash stolen and runs to the police for recourse!
A lawyer who also commented on condition of anonymity said: “Any criminal offences committed during or by any of the parties in it (prostitution) remain offences, e.g, theft of cash from a client or physical abuse of either party.
“However, one cannot seek remedy from court for failure by the other party to fulfil a contractual obligation like non-payment of agreed price.
“The judgment also dealt with the selective application of the law as it targeted women, leaving men out as the other party in crime.”