Legal Assistance Centre “WHOSE BODY IS IT?” COMMERCIAL SEX WORK AND THE LAW IN NAMIBIA 2002 FUNDED BY AUSTRIAN DEVELOPMENT COOPERATION THROUGH THE NORTH-SOUTH INSTITUTE 1 OVERVIEW AND ACKNOWLEDGEMENTS “Prostitution”, or “sex work”, is an issue which is likely to arouse strong feelings in Namibia. This report is not intended to provide moral approval or condemnation of sex work – it does not attempt to say whether prostitution or sex work is “right” or “wrong”. The objective of this report is to provide information which can produce a more informed debate about sex work in Namibia, with an emphasis on the human rights aspects of the issue: • Chapter 1 explains basic terms and concepts and gives an overview of the topic. This chapter was drafted by Dianne Hubbard of the Legal Assistance Centre. • Chapter 2 reviews the relevant international documents, such as the Beijing Platform for Action and the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and summarises Namibia’s international obligations in this area. This chapter was drafted by Leigh-Anne Agnew and Dianne Hubbard of the Legal Assistance Centre. Chapter 3 presents an historical look at sex work in Namibia. This chapter was drafted by Dr Rob Gordon, a Namibian-born anthropologist based at the University of Vermont who has done extensive research and writing on various aspects of Namibian history. Casper Eriksen gave valuable help as a research assistant in respect of this chapter. Chapter 4 explains the current legal position of sex work in Namibia. This chapter was drafted by Leigh-Anne Agnew and Dianne Hubbard of the Legal Assistance Centre. Chapter 5 presents recent research on sex work in Namibia. This chapter was drafted by Erna Keulder of Research Facilitation Services, and is based on research commissioned for this report by the Legal Assistance Centre. The framework for the field research was mapped out in consultation with representatives of interested organisations at a “brainstorming session” held in March 2001. The research team for this portion of the project was as follows: Project Leader Erna Keulder Specialist Consultants Dr Willem Schürink Christiaan Keulder Father Hermann Klein-Hitpass Administrative Assistant Felicity Kröhne Coding Clerks Felicity Kröhne Tania Wiese Data capturing Markdata (Pty) Ltd Pieter Prinsloo Fieldworkers Jatah Kazondu Samueline Meroro Fransina Kahungu Henriette Lamprecht Telephone interviews Samueline Meroro i Fransina Kahungu Maryna Resandt Celehte Möller Chapter 6 explores a variety of legal approaches which have been taken in other countries. This chapter was drafted by CLAIHR interns Susan Taylor and Heather Sherdahl with assistance from Leigh-Anne Agnew and Dianne Hubbard of the Legal Assistance Centre. Chapter 7 discusses sex work and HIV/AIDS. It was drafted by Michaela Figueira of the Legal Assistance Centre. Chapter 8 makes recommendations and highlights certain issues for further discussion. This chapter was drafted by Dianne Hubbard of the Legal Assistance Centre. Legal Assistance Centre staff members Willem Odendaal and Evelyn Zimba also made contributions to the report. Special assistance was also received from Collette Campher, Naomi Kisting, Rudolf Gawaseb and Joseph Kahuika of the Legal Assistance Centre. Quiet Storm Film Productions has produced a documentary on sex work to accompany the report, and portions of the interviews filmed for that purpose have been quoted in the report. Dudley Viall provided key assistance with this aspect of the research. The report was edited by Dianne Hubbard of the Legal Assistance Centre. Special thanks are due to Hendrina de Klerk (of the Youth Directorate of the Ministry of Higher Education), Albert Mulonda (formerly of the same directorate) and Celia Kaunatjike of the National Youth Council, who pointed to the need for the study. Special thanks are also due to Father Hermann Klein-Hitpass, who gave advice based on many years of direct assistance to sex workers in Katutura, and to Rosa Namises, who has also been involved in providing advice and assistance to sex workers for many years. Thanks to NaSoma for supplying male and female condoms at a reduced price for distribution to the sex workers who were interviewed. We would like to thank the Reproductive Health Research Unit in Johannesburg (and in particular Dorothy Nairne), who shared South African research experiences and sponsored the attendance of four Namibian representatives at a national South African workshop on sex work in February 2001. We would also like to thank the Women’s Legal Centre of Cape Town, SWEAT of Cape Town and Helene Combrinck of the Community Law Centre at the University of the Western Cape (who is a consultant to the South African Law Reform Commission on the topic of sex work) for sharing South African information and experiences, and Elizabeth Campbell for providing information on Canada. FUNDED BY AUSTRIAN DEVELOPMENT COOPERATION THROUGH THE NORTH-SOUTH INSTITUTE ii TABLE OF CONTENTS SUMMARY OF REPORT CHAPTER 1 - INTRODUCTION 1.1 What is prostitution? 1.2 The concept of sex work 1.3 Sex workers 1.4 Clients 1.5 Third parties 1.6 Opposing international views 1.7 Sex worker support groups 1.8 Trafficking 1.9 Sex tourism 1.10 Conclusion CHAPTER 2 – INTERNATIONAL OBLIGATIONS 2.1 Introduction 2.2 Early international action on sex work 2.3 The 1949 Convention 2.4 World conferences on women 2.5 CEDAW 2.6 Trafficking protocol 2000 2.7 Related international issues 2.8 Child prostitution 2.9 African Charter on Human and Peoples’ Rights 2.10 SADC commitments 2.11 Other sets of international principles CHAPTER 3 – PROSTITUTION IN NAMIBIA IN COLONIAL TIMES 3.1 Introduction 3.2 The impact of demographics 3.3 Changing gender roles, female autonomy & prostitution 3.4 White prostitutes 3.5 The South African era 3.6 Conclusion CHAPTER 4 – CURRENT LAW ON SEX WORK IN NAMIBIA 4.1 Introduction 4.2 Combating of Immoral Practices Act (Act 21 of 1980) 4.3 Children’s Act (Act 33 of 1960) 4.4 Combating of Rape Act (Act 8 of 2000) 4.5 Sodomy and unnatural sexual offences 4.6 Municipal regulations 4.7 Case law iii CHAPTER 5 – SEX WORK IN NAMIBIA TODAY 5.1 Introduction 5.2 Methodology 5.3 Sample 5.4 Fieldwork 5.5 Findings of the sex worker study 5.6 Findings of the client study 5.7 Findings of the telephone survey CHAPTER 6- LEGAL APPROACHES TO SEX WORK IN OTHER COUNTRIES 6.1 Introduction 6.2 South Africa 6.3 Germany 6.4 The Netherlands 6.5 Sweden 6.6 New Zealand 6.7 Australia 6.8 England & Wales 6.9 Canada 6.10 Asian examples 6.11 African examples 6.12 Conclusions CHAPTER 7- COMMERCIAL SEX WORK AND HIV/AIDS 7.1 Introduction 7.2 The national response to HIV/AIDS 7.3 An undeniable link between human rights and health 7.4 The transmission of HIV through sex work 7.5 The dangers of mandatory testing 7.6 Laws on sex work and their impact on HIV transmission CHAPTER 8- RECOMMENDATIONS FOR NAMIBIA 8.1 Introduction 8.2 Constitutional issues 8.3 Possible legal approaches for Namibia 8.4 Recommendation for Namibia: Decriminalisation & Discouragement 8.5 No mandatory health testing for HIV and STDs 8.6 Child prostitution and child sex tourism 8.7 Adult sex tourism 8.8 Trafficking 8.9 Exploitation and mistreatment 8.10 Promoting safer sex 8.11 Conclusion ENDNOTES BIBLIOGRAPHY APPENDICES iv SUMMARY OF REPORT CHAPTER 1 - INTRODUCTION 1.1 WHAT IS PROSTITUTION? Definition of prostitution: Many definitions of prostitution focus on the seller of sex rather than on the entire transaction. An example of a more inclusive definition of prostitution is ‘an institution which allows certain powers of command over one person’s body to be exercised by another’. The continuum of sex for material gain: Defining prostitution is problematic because there are other sexual relationships in society which involve at least some element of material exchange. In some cultures and some periods of history, even marriage has been viewed primarily as a property arrangement. In Namibia, there are ambiguous relationships where young women have ‘boyfriends’ who provide cash or gifts in exchange for sexual favours – the ‘sugar daddy’ phenomenon. Focus of this study: This study focuses on commercial sex work, meaning situations where there is active solicitation of money for sexual favours. This is the type of prostitution which is covered by existing criminal laws in Namibia. Prostitution is a transaction involving two people – the seller and the buyer. Any genuine understanding of prostitution must examine the relationship between the two players. However it has proved to be harder to obtain information about clients. 1.2 THE CONCEPT OF SEX WORK Many people prefer the term sex work to prostitution because it focuses on the act as a form of labour which is, like other forms of labour, subject to exploitation. This term turns attention away from moral judgements and towards practical problems like unsafe and unfair working conditions. It also emphasises the fact that sex work is an activity and not an identity. It has been argued that sex work is not so different from other kinds of work, since all work involves the sale of mental or manual labour involving different parts of the body. Other people object to the term sex work because it ‘normalises’ prostitution. Another argument here is that the inequality inherent in the relation between prostitute and client prevents this transaction from being “work” in the normal sense of the word. A related argument is that, because a person’s sexuality is so closely bound up with personal identity, the sale of sexual activity turns the prostitute into an object.