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THE ROLE OF POLICY WITHIN LAWMAKING

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Policy, defined by the South African government as “what a government ministry hopes to achieve and the methods and principles it will use to achieve them”, is central in the lawmaking process. It informs the law because it provides context to the particular issue being dealt with. Without vision and clarity on the principles underlying the work government hopes to do, laws would be empty and aimless in their attempts to achieve our Constitutional mandate and vision for a South Africa founded on Dignity, Equality and Freedom.

It within this context that Embrace Dignity has been particularly focused on developing quality content around the issue of prostitution. With the resources and content developed in the month of May, we hope to provide the information necessary to lay the foundation for policies on prostitution to be developed within the ministries of Justice, Social Development, Health, Education and Police. To this end, we have created one-page fact sheets that we have issued to members of Parliament, leaders of political parties, the media and non-governmental organisations and social movements. The fact sheets were disseminated with the hope that they will inform government’s development of comprehensive and effective policies outlining the aims and methods to be implemented by the government to realise the dignity and freedom of people exploited and brutalised within prostitution.

Moreover, in our review of the draft bills recommended by the South African Law Reform Commission (SALRC), we have found that there is a lack of focused and comprehensive policies reflected in the draft bills proposed by the SALRC. This is particularly evident in the second option recommended by the SALRC – total criminalisation with diversion. This recommendation shows how policy that does not clearly outline the goals and vision of what a law is based on – for example the value system that informs the law and what the kind of society we are building as a country – leads to bills and laws that do not speak to effecting the change necessary for the realisation of the Constitutionally-protected rights of those being prostituted.

Option one in the report is a legal framework referred to as Partial Criminalisation. This in itself is problematic as it does not reflect the fact that South Africa is moving away from a criminalised framework and that the intentions of the particular legal framework proposed by the SALRC would be partial decriminalisation rather than partial criminalisation. While this might sound like it is one and the same thing, it is not. Under criminalisation, all aspects of the system of prostitution are criminalised. Therefore, any change we make should be to decriminalise one aspect (those who are bought and sold) while the buyer, the pimp, the brothel owner and the trafficker remain criminalised. By decriminalising the bought and sold we can reduce demand and thus prevent new entry and support exit.  However, the way the draft bill is framed suggests a lack of understanding of the intentions of partial decriminalisation, where the person selling sex acts is completely decriminalised. The second problem is the vagueness on matters of implementation and putting systems in place for actually reducing the harms inherent in prostitution.

Again, it is clear that without policies in place, the lawmaking process is compromised and lacking in context. Policy informs law, and if a policy is not informed by the reality on the ground of those it is seeking to protect or its intentions, vision and methodology are not clearly defined or understood from the outset, the bills and laws that emanate from these policies can prove to be ineffective in the long run as well.

In our own mission to make policy and law accessible to all, we have decided to share a number of information resources with the public. We hope that this initiative will help deepen our engagement with various stakeholders regarding the law we want and the dignified future we are trying to create, free of exploitation.  To access these documents, please visit our website: www.embracedignity.org.za.