The Honourable Deputy Minister of Social Development, Henrietta Bogopane-Zulu was quoted in several media reports as having made a policy pronouncement calling for the “decriminalisation of sex work”. The ANC and the Government do not have a policy on the “decriminalisation of sex work.” It is irresponsible for ANC representatives in government to call for the decriminalisation of ‘sex work’ and give voice to an agenda that would oppress women, undermine gender equality and perpetuate patriarchy. The link between prostitution and organised crime is well established. Calling for its decriminalisation is tantamount to opening the flood gates for human trafficking, drug trafficking and other forms of organised crime.
The ANC deliberated on this issue at its 54th Congress and passed a resolution calling for a high- level public dialogue that would determine the societal norm. The ANC also called for the protection of those bought, exploited and sold in the sex trade. Nowhere has the ANC called for the protection of sex buyers, pimps and brothel managers, which is what the decriminalisation of the system of prostitution would do.
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.”
The call for the protection of “sex workers” by the ANC must not be confused with the call to decriminalise the whole sex trade, including pimping and brothel keeping, which is implied by the call for the “decriminalisation of sex work.”
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.
The term ‘sex work’ does not appear in any South African legislation. ‘Sex work’ is a term invented by the ‘sex work’ lobby to normalise an exploitative, oppressive industry designed to normalise the oppressive system and persuade people to regard it as work. It is a slight of hand to opportunistically introduce an idea that has not even been debated in the country.
The South African Law Reform Commission specifically deals with the issue of language and has concluded that this is a matter of policy. It therefore recommended the continued use of the “prostitution”, which is the term in our law.
Referring to the prostitution system as “sex work” is an attempt to normalise an exploitative and coerced transaction, where the buyer is exercising power and money to gain access to another’s body for their own sexual gratification.
Prostitution is neither sex nor work, but coerced consent and exploitation. While some may argue it is consensual, the fact is that it is coerced by the money and it is therefore not free or mutually fulfilling. It does not fit the ILO definition of decent work, as it is exploitative and often violent. The seller has to numb and disassociate themselves to survive the pain and repeated bodily invasion.
Prostitution is inherently harmful. It cannot be made safe.
The oppressive system of prostitution
The ANC-led Government is developing policy and legislation through the South African Law Reform Commission (SALRC) which has completed its final report on Project 107 Sexual Offences Adult Prostitution and submitted it to Cabinet, after lengthy research and inputs through public submissions. The report was released by the Minister of Justice and the SALRC for public comment on 26 May 2017.
The report dismissed the total decriminalisation of adult prostitution as a policy option for South Africa, and presented two options, with two draft bills:
Option 1 was partial decriminalisation which decriminalises those who sell sex and retains the criminal sanctions on those who buy sex, as well as those who exploit the women – the pimps and brothels.
Option 2 retained the total criminalisation system of prostitution and provides options for diversion and exit from the system.
It is important to note what the Minister of Justice and Constitutional Development, Adv. Mike Masutha the recommendations in the Report. He, said: “We are convinced that the legislative proposals contained in the report will improve the present system as it applies to adult prostitution and ease some of the complex realities faced by South Africans engaged in prostitution, such as socio-economic marginalisation of women and the impact of the HIV/AIDS pandemic.”
He also said: “Our government has a constitutional responsibility to promote the values of human dignity, the achievement of equality and the advancement of human rights and freedoms.
We are also obligated to observe several international legal instruments, including the United Nations Convention on the Elimination of all Forms of Discrimination Against Women, 1979 towards the combating and, ultimately, eradication of violence against women.”
The Equality Law
Embrace Dignity welcomed the release of the SALRC Report Project 107 and in particular the recognition of partial decriminalisation in Option 1. This legal option is also known as the Equality Model. In the beginning, it was called the Swedish Model.
It promotes equality by diminishing the privilege of the powerful to exploit and holding them accountable for a change and by raising the status of the violated by recognizing that they are not criminals.
Equality belongs to all peoples, as this model does.
At Embrace Dignity we commissioned research and consulted with our allies in countries that have implemented the abolitionist Equality Law, also known as the Swedish model or Nordic model. We developed a Policy Brief and Draft Bill to the Minister of Justice and Constitutional Development for consideration.
The abolitionist Equality Law, pioneered in Sweden as part of a set of laws and other interventions, such as providing support for exit, promotes gender equality and addresses gender-based violence and patriarchy – breaking the cycle of oppression.
It has been adopted and adapted by a number of countries, including Iceland (2009), Norway (2009), Canada (2014), Northern Ireland (2015) France (2016), Ireland (2017) and Israel (2018). Hopefully South Africa will be the first country to adopt the Equality Law in Africa and the ninth in the world.
The Equality Law is a creative third way in its own right with a clear purpose and a coherent strategy to ultimately abolish the oppressive system of prostitution, rather than promote it.