Is criminalization of commercial sex work in Uganda an answer? A case study of commercial sex workers in Kampala District

Betty Kyokunzire

Supervisor: Professor Julie Stewart

Submitted in partial fulfilment of the requirements for the Masters degree in Women’s Law, Southern and East African Regional Centre for Women’s Law

University of Zimbabwe

MARCH 2006

1 2 Dedication To my best friend and loving husband Timothy Halango for the care, love, support, advice and encouragement for all the years I have known you. Thank you very much for being there for me during my ‘lows’ and ‘highs’ especially when everybody disowned me. I will remain indebted to you for ever.

3 Acknowledgements

First and foremost, I thank the almighty God for seeing me through this course of Masters in Wom- en’s Law programme, despite my trying times. May the glory be to you God.

I wish to extend my deepest heart felt appreciation to NORAD for the financial and material support without which I would not have been able to attend this eye opening course on Women’s Law Programme at SEARCWL University of Zimbabwe.

I am extremely grateful to my supervisor Professor Julie Stewart for her guidance and ideas, this study would not have been possible without her contributions.

To the entire staff of Southern and Eastern African Regional Centre for Women’s Law ( SEARCWL) Dr. Amy Tsang, Rudo , Cecilie, Blessing , Sesezdai and Johnson thank you for your support throughout this course.

To my employer, the Inspector General of Police, because it would have been impossible to under- take this course if he had not accorded me study leave and support during this course. I appreciate it from the bottom of my heart.

To my father Mr. Bavis Bitarinsha, I extend my gratitude to you for laying a foundation in my education. Without your tireless support and hard work this course would not have been possible for me. I also owe my gratitude to my course mates especially residents of Basil Fletcher Courts for their support and encouragement throughout this course and for accepting to leave their ‘goggling’ busi- ness for the sake of their education. As Prof. always said, we are getting there, now I am saying we are finally there at long last.

Michael and Anselm my fellow Ugandan course mates I am extremely happy for your support, company and assistance while we were ‘maforeigners’.

To Millicent Mrs Odeny, for your moral support and encouragement especially when I was going through emotional stress. Thank you very much and may God bless you abundantly.

The Ugandan community in Harare, Kyazze, James, Deborah and George thanks for the hospitality. UZ Ugandan students, especially Patrick Olowo thank you for orienting us in Harare.

To all police officers, men and women, my respondents who were willing to be interviewed despite the inconveniences I caused during their working hours. All those persons who assisted me during this study and are not mentioned here by name, I wish to say thank you for your time and support.

Last but not least, I owe invaluable gratitude to my sweet heart Timothy who tolerated months of separation during our early years together. You were always there for me even when I felt I needed to give up. I can’t measure your care, love, advice, encouragement, and understanding. May we grow older together, falling in love with you a little more each time and waiting to see what hand- some husband you will become. Maita basa Shamwari.

4 Contents

CHAPTER ONE What to do about commercial sex work ...... 9

CHAPTER TWO Perspectives on commercial sex work ...... 13

CHAPTER THREE The methodological frameworks ...... 21

CHAPTER FOUR Commercial sex work is a reality in Kampala: Men seek out the services of sex workers ...... 27

CHAPTER FIVE: The way it is ...... 37

CHAPTER SIX ‘A solution to everything’ ...... 42

5 List of international instruments

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1981)

Universal Declaration of Human Rights (1948)

International Covenant on Civil and Political Rights (1976)

International Covenant on Economic, Social and Cultural Rights (1976).

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1951).

CEDAW Committee, General Recommendation no. 19.

Commission on Human Rights on the Status of Women

List of Acts

The Constitution of the Republic of Uganda (1995)

The Penal Code Act Laws of Uganda Cap (106)

List of tables

Table 1: Respondents interviewed in group discussions.

Table 2: Categories of clients.

Table 3: Peak hours of operation

Table 4: Respondents with regular customers.

Table 5: Level of education of the respondents.

Table 6: Age of respondents interviewed and their marital status.

Table 7: Attitude of the general public on regulating, legalizing or decriminalizing commercial sex work

List of acronyms

AIDS acquired immune deficiency syndrome CEDAW Convention on the Elimination of all forms of Discrimination against Women HIV human immune-deficiency virus. ILO International Labour Organization. UNESCO United Nations Educational Scientific Cultural Organization

6 1- Kansanga 2- Kabala gala 3- Kibuye 4- Bwaise 5- Wandegeya 6- Kampala road 7- Industrial area (location of discotheques)

7 8 CHAPTER ONE

What to do about commercial sex work

The illegal status of commercial sex workers in Uganda currently renders them vulnerable to exploitation, as they have no recourse to any protection from the law or society. Many activists and other people argue that sex workers need to be protected under the labour laws to ensure they receive at least a minimum wage and are guaranteed fair working hours. In practical terms, instead of criminalization, legalizing, regulating and decriminalizing commercial sex work in Uganda would improve working conditions and the health and safety of commercial sex workers. They would be able to be organized more easily and could negotiate more safely with clients knowing that the police would protect them as citizens rather than harass them as criminals. In a society and economy where commercial sex work has already become common and is the highest paid source of income for unskilled women and girls, any attempt to suppress the industry without providing sound eco- nomic alternatives can only fail.

Commercial sex work in Uganda is an offence under section 136(1) of the Penal Code Act which makes it an offence punishable by a seven-year imprisonment term. Is this a fair law? What can be done to ensure that the law is fair to women commercial sex workers in Kampala district and Uganda as a whole? Operations to arrest, prosecute and imprison commercial sex workers put a strain on the financial and human resources of the police and the country as a whole, amidst competing demands, yet the results of the police action do not reflect its efforts.

Decriminalization of commercial sex work refers to total decriminalization, that is, the repeal of laws against consensual adult sexual activity in commercial and non-commercial contexts. Commercial sex work advocates call for decriminalization of all aspects of commercial sex work resulting from an individuals’ decision. Advo- cates for decriminalization of commercial sex work claim that laws against pimping (living off the earning) are often used against domestic partners and children, and these laws serve to prevent commercial sex workers from organizing their business and working together for mutual protection. They call for the repeal of current laws that interfere with their rights of freedom of travel and freedom of association. Civil rights and human rights advocates from a variety of perspectives call for enforcement of laws against fraud, abuse, violence and coercion to protect commercial sex workers from abusive, exploitative partners and management (Elaine, 2004).

This approach of decriminalization would promote and protect the human rights of commercial sex workers by removing the oppressive power of the state and exploitative power of criminals. One does not necessarily have to accept the view that sex work is a legitimate form of work in order to agree with decriminalization. One need only agree that, until women no longer live under patriarchy, the best way to protect commercial sex workers’ rights is to empower the women to protect themselves. Women who can work legally are more likely to be in control of their own working conditions, such as the number of customers per day, the price to charge and use of condoms (Ann, 2000).

The approach of legalization from a sociological perspective refers to a system of criminal regulations and government control of commercial sex work, where certain commercial sex workers are given licences which permit them to work in specific and usually limited ways. Although legalization can also imply a decriminalized, autonomous system of commercial sex work, in reality, in most ‘legalized’ systems the police are relegated the job of commercial sex work control through criminal codes. Laws regulate the commercial sex work business and leave prescribing health checks and registration of health status to be enforced by police and often medical personnel who tell women where they may or may not reside. Commercial sex work activists use the term ‘legalization’ to refer to a system of state control which defines the term by the realities of the current situation, rather than by the broad implications of the term itself.

9 Regulation of commercial sex work refers to the criminal regulation of commercial sex work but commercial sex workers rights activists also refer to regulation in terms of both civil regulation and self regulation. They call for commercial sex work and civil codes to regulate the commercial sex work business with regard to the conditions and rights of workers. Those who call for autonomy support solo and collective work arrangements, and commercial sex workers controlling their own lives and business.

The need to abolish child prostitution, forced prostitution and trafficking is unquestionable but hollow legaliza- tion fails to protect consensual commercial sex work and it does not address the workers concerns. The very existence of these persons is representative of the demand for them. The question remains why men engage the services of commercial sex workers despite the law against it. The law should be reformed to suit the interests of the society for which it is made rather than to drive the operations underground.

I was interested in this area of research because of my past experience as a police officer, employed in a department entrusted with keeping law and order, detecting crime and carrying out investigations. One night I was on duty and the programme that night was to round up all commercial sex workers on the streets of Kampala because there were some dignitaries who were coming to the country. As the operation was con- ducted, we found women with their clients but we arrested the women and left their clients free. The reason was that only women were considered to be commercial sex workers by those carrying out the operation despite our laws providing for men and women. When I enrolled for this course, this encouraged me to carry out research on this area of commercial sex workers in Kampala district. Even though there is a section on the offence of prostitution in the Penal Code Act, women are always charged with being idle and disorderly persons.

I will discuss the above approaches or options in this study as some of the measures or remedies the government can take on to handle the issues of commercial sex workers in Kampala district.

Geographical setting

Kampala district borders the district of Mukono in the East and is surrounded by Wakiso district for the greater part. It is the only urban district in the country. It is both a district and the capital city of Uganda. The population is 1,208,544 people – 620,111 females and 588,433 males. The area is 197.0 sq. km (Uganda district, 2005). The areas visited in Kampala district include places like streets of Kampala, dancing houses, drinking places and some other isolated places, kabala gala, kansanga, Kibuye, Wandegeya slums, Bwaise slums, Sheraton hotel, Speke hotel, Nile avenue, sax pub, and all the streets in the city centre. Places which provide a haven for commercial sex workers in other suburbs of the city within reach and are ‘said to be places of commercial sex workers’ were reached.

Organizations that offer counselling and other services to commercial sex workers with the intention of reform- ing and rehabilitating them were also contacted.

Significance of the study

There is a need to review the law so that commercial sex workers can find remedies for the problems they encounter in the trade by having a platform to air their grievances and views and speak out for their work. In Uganda, these women cannot be assisted by the criminal justice system if they encounter problems in the trade because it is illegal to engage in commercial sex work under the Penal Code Act (chapter 106).

This research is addressed to legislators, women activists, students, policy makers, non-governmental organi- zations, economists, social scientists and ordinary persons concerned. Commercial sex work, in spite of its criminalization in most countries, is here to stay. To live with it, therefore, concerted efforts need to be made by all societal institutions to serve the interests of the community at large. The legal status of these members of society should therefore be considered, bearing in mind the underlying causes of the vice, in order to address its root cause. The study is also to ensure gender appreciation of various feminists’ debates on prostitution and other relevant materials.

10 Definition of concepts

Section 138 of the Penal Code Act provides for the definition of a ‘prostitute’ and ‘prostitution’. It states in this code that ‘prostitute’ means a person who, in public or elsewhere, regularly or habitually holds himself or herself out as available for sexual intercourse or other sexual gratification for monetary or other material gain, ‘prostitution’ shall be construed accordingly.

In this paper I have chosen the term ‘commercial sex worker’ to reflect the current use throughout the world. I intend to use sex work as a term that suggests that prostitution is not an identity but an income-generating activity or form of labour for women in Uganda because men prostitutes are hardly known. The definition stresses the social location of those engaged in the commercial sex industry as working people. Throughout this research, when I use the term commercial sex work, it means any sexual act between persons for money or other considerations.

The term ‘sex trade’ and ‘sex industry’ in this paper will mean buying and selling in a commercial sex market which is a place where negotiation between clients and commercial sex workers takes place.

A ‘customer’ shall mean a person who is a client of a commercial sex worker.

‘Commercialized rape victim’ in this paper includes women who are involuntarily trafficked, forced or non- economically coerced into the commercial sex industry and all children, whether or not they purportedly ‘con- sent’ to entering the commercial sex industry. This term ‘victim’ identifies these children and women as objects of some actor, be it the parents, procurers, rapists or brothel owners. The modifier ‘rape’ identifies the relation- ship between the victim and the person purchasing sexual services (even if he technically cannot be convicted of rape) and the role of the procurer or brothel owner as an accomplice to rape. The modifier ‘commercialized’ identifies the existence of a network of third parties who profit from the rape of the victims (Ann, 2000).

‘Long’ in relation to sex-work means having sexual intercourse or staying overnight with a customer or for about 5-6 hours.

‘Short’ in relation to sex-work means sex for a short time or period. It can take about 20 minutes or below in a lodge or standing while leaning against the walls, or in the customer’s vehicle.1

Objectives of the study

This study was carried out with the following objectives in mind:

1. To revisit the criminal laws affecting commercial sex work in Uganda in the light of human rights. 2. To understand how to effectively address problems of commercial sex work in view of safety and health issues of commercial sex workers and their clients.

3. To understand who is involved in women ‘getting into’ commercial sex work or how women and girls get into commercial sex work.

4. To consider and understand how to address the issues that affect commercial sex work in Kampala district. Assumptions

The assumptions of this study were:

1. Commercial sex work is a reality in Kampala: men seek out services of commercial sex workers.

2. Commercial sex work is a means for many women and girls without formal training or education to earn a livelihood.

1 ‘Long’ and ‘short’ were working terms used by commercial sex workers to negotiate terms of payment.

11 3. Commercial sex work is very difficult to curb. 4. Criminalization of commercial sex is not on its own sufficient to curb it.

5. Women and girls become engaged in commercial sex work because there are people who benefit from providing and managing commercial sex services.

6. Commercial sex work is seen as a major player in the spread of HIV/AIDS and other sexually transmitted infections. 7. Health and other safety control measures will reduce the health risks for both the commercial sex work- ers and their clients.

8. Legalization of commercial sex work as a profession by providing working permits, and licences will ensure provision of protection to both the workers and their clients by the state.

Research questions

The questions emanating from the above assumptions were:

1. Do men seek out commercial sex workers in Kampala?

2. Is commercial sex work a means for many women and girls without formal training or education to make a living?

3. Is commercial sex work difficult to curb? 4. Is criminalization of commercial sex work on its own sufficient to curb it?

5. Do women and girls engage in commercial sex work because there are people who benefit from provid- ing and managing services rendered by them? 6. Is commercial sex work a major player in the spread of HIV/AIDS and other sexually transmitted infec- tions?

7. Will health and safety control measures reduce the health risks for both the commercial sex workers and their clients?

8. Will legalization of commercial sex work as a profession by providing working permits and licences ensure provision of protection of commercial sex workers and their clients by the state?

12 CHAPTER TWO

Perspectives on commercial sex work

Commercial sex workers have occupied an anomalous position in societies throughout history. Commercial sex workers are generally regarded as a social category who do not adhere to sexual or other behavioural norms. They are excluded from mainstream society; their lowly and marginal position is analogous to that of a low caste or minority ethnic group. This outcast status denies them whatever international and national protection from abuse is available to other citizens, women and workers (Bindman, 1997). This chapter outlines perspec- tives on commercial sex work at national, international levels and in other scholarly materials.

Sex work in human rights terms

The constitution (Government of Uganda, 1995) provides for equality and freedom from discrimination. Arti- cle 21(1) provides that all persons are equal before the law in all spheres of political, economic social and cultural life, and in every other respect, and shall enjoy equal protection of the law.

Article 21(2) without prejudice to clause (1) of this article, a person shall not be discriminated against on the grounds of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.

In article 21(3), for the purpose of this article, ‘discriminate’ means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability. Cases of commercial sex workers discriminate against women because of their sex. Therefore this provision guarantees them equal protection under the law. This provision could be made use of in order to protect women from being arrested for soliciting or loitering for immoral purposes by using strategic litigation or test cases.

Penal Code Act

With the introduction of colonial administration in Uganda, new laws were introduced into the native legal system which worked side by side with the customary laws already in existence at the time.

Uganda’s Penal Code Act is based on the Indian Penal Code Act and became applicable to Uganda by virtue of the 1902 order in council. Much of the content, however, was changed in 1930 and this new code has been in operation since then with minor amendments.

Commercial sex work exists despite the existing laws that make it a criminal offence for any person to engage in it.

Section 136(1) of the Penal Code Act states:

‘Every person who knowingly lives wholly or in part on the earnings of prostitution and every person who in any place solicits or importunes for immoral purposes commits an offence and is liable to imprisonment for seven years.’

Police and sometimes the city law enforcement personnel periodically round up suspected commercial sex workers and charge them in courts of law as idle and disorderly persons – not for prostitution as stated in the Act – and many have been convicted and given various sentences and fines. However, their actions appear not to

13 deter commercial sex workers. In fact, police records indicate that some individual sex workers who have been convicted and punished have gone back to commit the same crime again and this might be a clear indication that the need to engage in sex work is stronger than the fear of arrest and prosecution.

Section 167 states;

(a) ‘Any person who, being a prostitute: behaves in a disorderly or indecent manner in any public place; (f) In any public place solicits or loiters for immoral purposes shall be deemed an idle and disorderly person, and is liable on conviction to imprisonment for three months or to a fine not exceed- ing three thousand shillings or to both such fine and imprisonment, but in the case of an offence contrary to paragraph (a) (e) or (f) that person is liable to imprisonment for seven years.’

In Uganda the police have been carrying out operations arresting and prosecuting suspected commercial sex workers and charging them in the law courts. However, the result of their efforts does not appear to bear fruit as more and more young women roam the city streets with motives of commercial sex work. This shows that there is need to take different approaches to address the issue of commercial sex work in Kampala district.

Commercial sex work on the international agenda

The earliest definition of ‘trafficking’ was used to distinguish the ‘innocent’ woman who found herself in the sex industry as a result of abduction or deceit from the ordinary commercial sex worker. This was to allow the participation in the treaties on ‘trafficking’ of many national governments which permitted highly regulated forms of commercial sex work. These governments were not willing to sign a document which required the elimination of commercial sex work. For this reason, until 1949 commercial sex work was not named as a separate phenomenon but addressed in international agreements through the concept of ‘white slavery’ and, after 1912, through trafficking. The international process began with a conference in 1895 in Paris, followed by others in London and Budapest in 1899, and the first international instrument in 1904. These were prompted by alarm at reports of European women being tricked with offers of either employment or marriage into brothels far from home. Women from western Europe were going to other parts of Europe, British women to the United States, and eastern European women to Latin America. Commercial sex work was a target for fears associated with urbanization and mass male migration in search of work (Bindman, 1997).

Between 1895 and 1949 there were seven successive international agreements on the issue, each with its own different definition. The definitions were all variations on the themes of commercial sex work, recruitment into commercial sex work, the issue of coercion and the validity of consent and movement across frontiers. All agreements shared the basic themes of trying to protect women and children from engagement in commercial sex work and from prosecution if already in the trade as well as the criminalization of ‘third parties’ – anyone recruiting for or profiting from commercial sex work. Theses themes derive from the ‘abolitionist’ approach to commercial sex work which gained ground throughout the first half of the twentieth century. The abolitionist approach provides that the institution of commercial sex work itself constitutes a violation of human rights, akin to the institution of slavery (in fact the term ‘abolitionist’ was originally used to describe campaigners against the transatlantic slave trade). As such, no person, even an adult, is believed to be able to give genuine consent to engaging in commercial sex work. The Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, the Convention on the Elimination of all forms of Discrimination against Women and the Commission on Human Rights on the Status of Women have taken up the issues of commercial sex workers as have other scholarly materials as discussed here.

The traffiking convention

The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (trafficking convention) was signed in the late 1940s (General Assembly Res. 317(iv) of Dec 2, 1949, UN.Doc A/1251).The Trafficking Convention is the product of a campaign started in 1888 by Josephine Butler to close down all brothels and stop trafficking in women and girls. It calls for the repeal of laws regulating

14 commercial sex workers and for prosecution of everyone, except sellers and buyers, working in the commercial sex work industry.

By deregulating the industry and decriminalizing commercial sex workers the campaigners hoped to remove the power the laws had given to the police and brothel owners to exploit and abuse women who, fearing arrest, were forced to submit to the abuse. The campaigners refused to criminalize women in the commercial sex work industry whom they considered to be victims of exploitation. Consequently, the Trafficking Convention does not distinguish between commercial sex workers and criminalized rape victims. However, it does not actually state that all women in the commercial sex industry are victims and so, by its definitional silence, it permits individual commercial sex workers to work on their own without fear of arrest except for solicitation or loiter- ing.

Nonetheless, the drafters clearly intended to deprive commercial sex workers of the ability to work because, if the law is implemented perfectly, women cannot work in brothels and they cannot solicit on the streets. They are left to find clients by some other means not involving solicitation. It is difficult to find clients without soliciting on the streets, in clubs or through advertisements. This is the exact result intended by the drafters who saw the trafficking convention as the penultimate step toward eliminating sex work altogether. The underlying premise of the trafficking convention is that if the operation of the commercial sex work is criminalized, the industry will collapse.

By the law creating an environment in which it is impossible to work, it was believed that women eventually would give up sex work altogether as a result of the all-encompassing vice of the law. The anti-commercial sex work message of the trafficking convention is clear: contracting parties agree to punish ‘any person who, to gratify the passions of another, procures, entices or leads away, for purposes of prostitution, another person’ or otherwise ‘exploits the prostitution of another person’, even if the person selling sexual services consents. By rejecting the possibility of non-coercive consent, it rejects the ability of women to willingly sell sexual services, hire pimps or enter brothels. It conjures up a world of ignorant, misguided or perhaps base women and girls who have to be saved from themselves. The trafficking convention creates a dissonance and a human rights problem because it recognizes the lawful ability of commercial sex workers to ply their trade while, at the same time, depriving commercial sex workers of the right to have their consent recognized as legitimate or to choose their conditions of work.

Furthermore, the trafficking convention fails even to protect real victims because it contains the erroneous assumption that states parties will allocate sufficient funds for rehabilitation and employers will provide suit- able employment for reformed women. Funds and employment have not materialized and thus many of the women the law is intended to protect are unable to leave commercial sex work.

The trafficking convention has proved to be an ineffective international agreement. Some state parties to the convention have not enacted conforming domestic laws while others have enacted both implementing legisla- tion and other legislation, directly or indirectly authorizing and regulating commercial sex work. Enforcement of domestic laws is inconsistent and, in some places, non-existent as is the case in Uganda. As a consequence, many people are calling for a new convention. The drive for a new convention has been accelerated by the explosive growth of commercial sex workers in Asia, making it especially important for all interested parties to understand the Asian commercial sex industry and to listen to the voices of Asian commercial sex workers.

Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)

The Convention on the Elimination of all forms of Discrimination against Women entered into force in 1981. The language of the convention tracks the abolitionist approach of the trafficking convention. Article 6 calls on states parties to ‘suppress all forms of traffic in women and exploitation of prostitution of women’. The lan- guage focuses on criminals who force women and girls into the industry and connects trafficking to commercial sex work without mentioning other reasons for which women and girls are trafficked or without distinguishing

15 commercialized rape victims and commercial sex workers. The meaning of the language has been clarified and expanded by the CEDAW committee which overseas implementation of the convention. In its General Recom- mendation no. 19 on Violence Against Women, the CEDAW committee recognizes that ‘poverty and unem- ployment force many young women, including young girls, into prostitution’ and that ‘prostitutes are especially vulnerable to violence because of their status, which may be unlawful, and tends to marginalize them’ and consequently calls for ‘equal protection of the laws (CEDAW General Recommendation No.19). The recom- mendation thus pinpoints the role of economic factors and seems to distinguish between women who enter the industry as a result of economic factors and women who are trafficked or otherwise forced into the commercial sex work industry. It also acknowledges that victimization can arise as a result of the negative and marginalizing effect of laws that force women to work illegally. By implication, if repressive laws are changed and women can work legally, then women will be less vulnerable to violence and abuse.

Recommendation no.19 also requests states parties to report measures ‘which have been taken to protect women engaged in commercial sex work or subject to trafficking or other forms of sexual exploitation’ (CEDAW General Recommendation no.19 at para.22). This language appears to accept that women in the commercial sex work industry need legal protection, not rescue. However, it is unclear if it could require states to take measures to protect the rights of commercial sex workers to work, that is to decriminalize or otherwise change laws to avoid victimizing workers or it could simply mean better enforcement of existing laws against pimps, brothel owners, traffickers and others who use force or non-economic coercion.

Despite its shortcomings, CEDAW, as clarified by General Recommendation no.19, is in a better position than the trafficking convention to address the current human rights abuses of commercial sex workers. Furthermore, General Recommendation no.19 is an expansive document that can readily be interpreted to protect the rights of commercial sex workers, despite CEDAW’s focus on victims.

Commission on Human Rights on the Status of Women

In 1983, special rapporteur Jean Fernand-Laurent submitted a report on trafficking and exploitation of prostitu- tion to the Economic and Social Council in which he adopts the radical feminist position that all sex work is a form of slavery and that sex work is never ‘freely’ chosen because coercion is always present (Fernand- Laurent, 1983). The report has been influential but does not represent the only operative view within the United Nations system. The working group on Contemporary Commission on Prevention of Discrimination and Protection of Minorities, which is the commission on human rights, has responsibility for investigating the slavery-like con- ditions of women in commercial sex work (Res.11 (xxvii) of Aug.12, 1974). The sub-commissions’ mandate is to seek a mechanism for better enforcement of the trafficking convention and the slavery convention; it does not have a mandate to develop a new human rights perspective on trafficking and commercial sex work (ECOSOC Res.169 (L11), UN.Doc.E/5183). In the view of the working group ‘sexual exploitation, including the commer- cial sex industry, thrives in situations of extreme poverty, underdevelopment and discrimination’. It correctly addresses the structural factors pushing women into commercial sex work but whether or not it also accepts commercial sex workers as workers or considers all women in commercial sex work industry to be similarly- situated victims is unclear. Nonetheless, the working group plays a positive and important role in enforcing human rights concerns of women in the commercial sex industry. The Commission on the Status of Women, in consultation with women’s groups from all over the world, drafted the Declaration on the Elimination of Vio- lence Against Women, which was adopted by the General Assembly in 1993. The declaration implicitly recog- nizes that not all women in commercial sex work are victims. Article 2(b) lists trafficking in women and forced prostitution as two of many types of violence against women covered by the declaration (General Assembly Res.46/104, UN Doc.A/48/629). This language implies that women who are not forced into commercial sex work are not necessarily victims of violence needing protection. The declaration appears to reject Fernand Laurent’s essentialist conclusions because it leaves room for women who are not trafficked or forced to have agency and the right to work in the commercial sex work industry.

The Commission on Human Rights appointed Radhika Coomarasway as a special rapporteur to investigate and

16 report on the causes and consequences of violence against women. In 1994, she issued her first report in which she addresses the situation of victims of violence (Res. 1994/45, E/un.4/1995/42, paras. 204-219). Even though she does not distinguish between commercial sex work and commercialized rape victims, she takes no position on decriminalization of sex work but notes that ‘most societies and cultures do not accept this position’. None- theless, by recognizing the role of prohibition and regulation in contributing to violence in the commercial sex work industry, she implicitly supports either total decriminalization of the industry or, at minimum, repeal of laws penalizing commercial sex workers, including solicitation and loitering laws.

Globalization of the sex trade: trafficking and commodification of women and children

Capitalist globalization today involves an unprecedented ‘commodification’ of human beings. In the last 30 years the rapidly growing sex trade had been massively ‘industrialized’ worldwide. This industrialization, in both its legal and its illegal forms, generated profits (Barry, Jeffery, 1995). In 1995, during the United Nations Fourth World Women’s Congress in Beijing the principle of ‘forced commercial sex workers’ was used in a United Nations document. This created a special (presumed minority) category of commercial sex work that could be opposed without opposing the sex industry as such. Constraint or force was identified as the problem rather than the sex trade itself. The ways were opened for the normalization and legalization of the industry.

In 1997, at the Hague Ministerial Conference on Private International Law, when European ministers attempted to draw up guidelines harmonizing the European Unions’ fight against trafficking for the purposes of sexual exploitation, their definition of trafficked women included only those who were being trafficked against their will.

In 1998, the International Labour Organization (ILO) called for the economic recognition of the sex industry on the grounds that commercial sex workers would then benefit from workers’ rights and protections and im- proved working conditions that it presumed would follow (Lim, 1998). In June 1999, the ILO adopted an agreement on unbearable working conditions of children, the Convention concerning the Prohibition and Im- mediate Action for the Elimination of the Worst Forms of Child Labour. The agreement provides a long list of the work children do, including commercial sex work. This is the first time in an international text that sex work is presented as simply a job. Countries such as France, although ratifying this convention, have underlined that their ratification in no way recognizes prostitution as ‘work’. The United Nations’ special rapporteur on vio- lence against women was at pains in her report to the United Nations Human Rights Committee in April 2000 in Geneva, to distinguish trafficked women from ‘clandestine migrant professionals’ (Pouline, 2004).

All these statements and agreements tend to undermine the struggle against the growing sex industry and the system of commercial sex work which is at its heart, for they shift opposition from the system of itself, to the use of force or constraint within the system. They aim to protect only women who have not agreed to their exploitation and can prove this, placing the burden of proof on already vulnerable women. For instance, when the European Union declares its opposition to the illegal traffic in persons, it implies that there is a ‘legal traffic’. Such initiatives transform the struggle against commodification (Louis, 2000).

Trafficking in women as a moral issue

The traditional approach to trafficking in women is what could be called the moral response, rooted in the moral condemnation of commercial sex work. Within this approach, trafficking in women is considered to be just a part of the overall evil of commercial sex work, without regard to conditions or concerns of coercion. So viewed, commercial sex work and trafficking become practically identical (Sisyphe, 2002-2006). Measures to combat trafficking aim at suppressing commercial sex work, either by criminalizing all parties in the commer- cial sex work industry, including commercial sex workers themselves, as in the prohibitionist system, or by criminalizing any third party, as in an abolitionist system. Policies of governments are based on such moral condemnation of commercial sex work. The impact on women is invariably a combination of isolation, stigma- tization and marginalization, putting them at greater risks of abuse and violence due to the illegal and stigma-

17 tized status of their work. Women are divided into good or ‘innocent’ women, that is non commercial sex workers who deserve protection, and bad or ‘guilty’ women, that is commercial sex workers who can be abused with impunity as it is their own fault. Even in the contemporary trafficking debate, the image of ‘innocent victim’ appears to be extremely persistent implying that only those women who succeed in complying with this image of innocence can count on support, an attitude which traffickers gratefully exploit. Although the moral approach is still dominant in the international debate, for example at the United Nations level, over the years non-governmental organizations have begun to challenge this position. (http// www.sisyphe.org.article.php3?idarticle=1616). New approaches are being developed, starting from the point of view of the women involved and moving the focus of the debate from a moral position to working condi- tions.

Feminists and commercial sex work

Radical feminists oppose the term ‘commercial sex work’ because ‘worker’ is an explicit recognition that the sale of sexual services is a legitimate form of work. Their position is encapsulated in the Penn state report, which emanates from a meeting organized by the United Nations Educational Scientific and Cultural Organiza- tion (UNESCO) and the Coalition against Trafficking in Women (CATW). UNESCO and the coalition argue that the state of sex is always for the benefit of and exploitation by men in patriarchal society. They oppose human rights arguments for freedom of choice and action by comparing the sale of sexual services to slavery, which is totally discredited today on ethical grounds, and to the sale of body parts and surrogate motherhood (Barry, 1981). They assert that the pro-commercial sex work lobby is a paternalistic, western invention in- tended to protect the rights of commercial sex workers in the west while ignoring the double harm of poverty and exploitation in the commercial sex industry in the developing world (Barry, 1981:5). They support the protection of the human right of commercial sex workers, as women, but object to the notion of the human rights to be a commercial sex worker on the grounds that such a right ‘usurps and negates already established human rights of commercial sex workers to human dignity, bodily integrity, physical and mental well being’. They lament the failure of international law and women’s movements to identity sex work as a form of violence against women. In sum, they see sex work as inherently violent to the physical person and/or the psychological self (Barry, 1981: 6-7).

They refuse to deprive commercial sex workers of their right to work, even if it means accepting sex work as a legitimate occupation. Liberal feminists reject morality as a legitimate basis for depriving women who are not harming anyone of the rights to work in the commercial sex industry. Post-modern feminists critique the essen- tialism of the radical feminist position. Both analyses require feminists, even those who are uncomfortable with the ideal of sex work, to acknowledge differences and to listen to the voices of the workers themselves. In refutation of the exploitation charge, women in the commercial sex industry point out that, while commercial sex workers may be exploited by men, it is also true that many of the exploiters are women operating brothels and recruiting young girls into the industry.

According to Ann Jordan, they also force us to admit the difficulty of crying ‘exploitation’ in cases where commercial sex workers make more money selling sex than they could ever earn in a ‘straight’ job. They point out the exploitation of women is often worse in factories than in brothels. The only difference between a woman who works for exploitative conditions in a factory, for example, is the nature of the work. Women in both occupations are ‘victims’ in the sense that they live in a patriarchal, sexist society that channels women to the lower end of the socio-economic ladder and working in exploitative working conditions. However, that some societies treat them differently: it is willing to fight the rights of the factory workers while it refuses to accept the rights of commercial sex workers. Rights are determined by morality and women making the ‘immoral’ choice suffer the consequences (Jordan, 2000).

The pro commercial sex work advocates argue that the sale of sexual services by commercial sex workers cannot be equated with slavery, which involves the involuntary sale of a person and the virtually total loss of that person’s rights and freedom. Sex work does not necessarily deprive the seller of any rights or freedoms. It

18 is, conceptually, similar to renting the use of ones hands and brain as a factory worker. Also, the arguments that women who sell sexual services lack human dignity, bodily integrity and physical and mental wellbeing simply because of what they do for a living and that all commercial sex workers are dehumanized and either physically or mentally unwell are simplistic and patronizing. They ignore the suffering of people all over the world who are ‘forced’ by economic hardships to engage in all sorts of degrading, dehumanizing and dangerous work. No one challenges the rights of those ‘victims’ to continue working. The stigma of ‘victims’ is reserved for com- mercial sex workers who are ‘protected’ out of a job (Barry, 1981).

Chapkis (1997) is one of those who does not believe that prostitution is the ultimate in woman’s liberation, but that it nonetheless is better understood as work than as inevitably a form of sexual violence. What commercial sex workers need, she argues, is not a bunch of moralists looking down on them but decent working conditions. She believes commercial sex work should be decriminalized and that just because it can be lousy work does not mean it should be stamped out. She argues that there are lots of jobs in which women are underpaid, under- appreciated and exploited. Criminalizing the sex work just exacerbates commercial sex workers’ problems by isolating them from the law and leaving them vulnerable to abusive pimps. In this trade where women tradition- ally are not treated well, are not empowered and should be able to go to the police for protection and assistance, she believes the police are an extra obstacle and threat because the work is illegal in the first place.

By way of contrast, in the Netherlands where prostitution is decriminalized, the police and commercial sex workers are on the same side; ‘hookers’ speak at the police academies to educate the officers about their work, and Chapkis says the communication pays off in safer conditions for women.

Chapkis points out that many things in modern life began as patriarchal institutions – marriage, for example. Problems within marriage, she points out, can be addressed without resorting to abolition; these days, marital property is distributed more fairly and abused wives have places to go for help. There are no easy generaliza- tions about sex workers’ lives, according to her, some street prostitutes feel powerful and in control and are making a lot of money and yet there are many high-class call girls who hate their jobs. Either way she is certain that the only option is decriminalization which would prevent prostitutes from getting arrested.

‘I’m as concerned as any of the abolitionists to deal with the problems of prostitution, violence, drug abuse, poverty but you cannot solve those problems by further criminalizing prostitution, this drives it further underground and makes it more difficult for women to access what help there is’ (Chapkis, 1997).

Through this focus on sexual economics, many first wave feminists drew significant parities between the posi- tion of commercial sex workers and the position of all women. They emphasized the relationship between commercial sex workers and other women’s work as well as between commercial sex workers and other rela- tionships involving sexual economic exchange; including marriage. Nowhere is a woman treated according to the merit of her work but rather as a sex object. It is merely a question of degree whether she sells herself to one man or, outside marriage, to many men’ (Goldman, 1970).

However, Overs (1988) suggests that there are some specific grounds on which feminists can condemn prosti- tution. While prostitution has been seen as problematic because it involves particular dangers for women, such as disease, dignity, physical and psychological abuse and emotional pain, Overs argues that dangers and injury cannot be considered essential elements of sex work. Women are frequently subjected to disease, injury and psychological abuse in other work places such as offices and factories as well as in their own homes. Overs also examined the view that sex work should be condemned because sometimes women were coerced into it. She concluded that all workers face an absence of consent which features in many women’s activities under capital- ism and male dominance. Thus there is a need to acknowledge both the presence of economic coercion in paid work generally and the agency which some women exercise in relation to sex work. While some sex workers have a little choice about their work, others quite deliberately choose commercial sex work, as will be discussed in the proceeding chapter on the Uganda case study in Kampala district in particular.

19 My point of departure was to investigate the nature and form of commercial sex work in Kampala district and how it can be managed or addressed, in particular with respect to a police officer, as discussed in chapter one. Though there is literature linking trafficking of women for purposes of commercial sex work, this was not established during this study.

20 CHAPTER THREE

The methodological frameworks

Considering that the lives of women in society are affected by a plurality of norms, various theoretical frame- works were adopted to analyze, explain, describe and understand the position of commercial sex workers in law and society. The theoretical frameworks complemented each other. In order to effectively carry out my research and collect data using the grounded theory and women’s law approach, I used some of the methods described In Bentzon et al. (1989: 179-189) which included, amongst others, observations, key informants, open ended in- depth interviews, open and group discussions. This chapter deals with the various methods I used, the reasons why I used them, the instances in which I had to re-strategize and why, which research methods were more effective than others and the problems I encountered.

Women’s law approach

Women’s law methodology was used as the overall underlying approach in the study because of its multi- disciplinary and grounded nature. (Stang Dahl in Bentzon, 1989: 52).

‘The methodology of women’s law is cross disciplinary and pluralist and calls for a rather free use of available material wherever it can be found.’

The approach takes women in particular and their lived experiences as the starting point. This methodology was used to analyze the position of commercial sex workers within the law, society and in the family. Women’s law is a legal discipline which explores the reality of women’s lives and from that perspective interrogates and investigates the law. The advantage was that it uncovered the nature of women’s problems and enabled me to analyze the law critically. The approach looks at the broad-based construction of the position of women and that of men and the relationship between them.

Grounded theory

Grounded theory as a key to the women’s law research is a process in which data, theory, lived realities of women and perceptions about norms are constantly engaged with each other to help in deciding what data to collect and how to interpret it. The interaction between developing theories and methodology is constant as preliminary assumptions direct the data collected and when analyzed indicates new directions and new sources of data (Bentzon et al., 1998). I had to rephrase and evaluate my assumptions and research questions as part of the grounded theory approach because of the data I was collecting in the field; I discovered that women and girls engage in commercial sex work because there are people who benefit by managing and providing com- mercial sex services. I therefore had to triangulate the data to the assumptions in order to answer the question to the assumption that women and girls engage in commercial sex work because there are people who benefit from managing and providing services they rendered.

Another assumption that did not stand in the field was that commercial sex workers are a major cause of the spread of HIV/AIDS. I did library research in Uganda for scholarly materials on how women are introduced into the business of commercial sex work, but was not able to locate such scholarly material. I then had to ground my research in the lived realities of commercial sex workers by interviewing them to get first hand information on how they entered the business and on the issue of being a major source of the spread of HIV/ AIDS.

This methodology was helpful to me because it enabled me to get a clear picture of the lived realities and the experiences of commercial sex workers and of how the law and courts treat them when they are arrested. I was able to see what the gaps that existed between the law and the lived realities and experiences of women com-

21 mercial sex workers were and this gave me a pointer as to which way forward was best to deal with the issue of improving the position of the women in law and at the societal level.

Legal pluralism

Legal pluralism presupposes the existence of other normative orders with the ability to generate and enforce rules. Having no mechanisms of reporting crimes by commercial sex workers in police stations creates a legal void; commercial sex workers have devised other means of handling the situation. This affects the position of women, and this study will explain why commercial sex workers do not report cases of sexual assault and thefts to police stations. I used the legal pluralist approach in this study to examine how the plural systems affect women in their efforts to use the criminal justice system in Uganda to protect themselves against assaults from their clients. This approach helped me to unearth the contradictions that exist between the general law on one hand and the practices on the ground. This methodology was very useful in that it enabled me to obtain a clear picture of factors that affect women’s lived realities and the choices they make, as well as their decisions and direction in the course of looking for solutions to their problems. Women who operate from guest houses used guest house attendants for protection in case of a client refusing to pay or other problems.

Actors and structures

Actors and structures influence the way in which women behave (Weis Bentzon et al., 1998).

‘The actors’ perspective is particularly useful in obtaining a dynamic and processual understanding of gender and legal change in the context where state law interplays with other normative orders. It is assumed that social and legal change takes place through interaction between human beings as indi- viduals or groups and not through some seemingly abstract medium as ‘the law’.

This approach enabled me to start out with women’s experiences in the process of life management by looking at the normative structures that impinge on commercial sex workers’ lives. The police and courts affect com- mercial sex workers in their trade in that they are arrested and asked to pay a fine but they have developed ways of avoiding imprisonment by carrying money and assisting each other with money for paying fines in courts of law. Commercial sex workers also pay money to police as bribes to avoid being arrested and taken to court thereby avoiding the structures or the laws.

Semi-autonomous social fields

Sally Falk Moore describes semi-autonomous social fields as a tool that assists in describing and analyzing the rule generating and rule upholding process, which affects the position of women and gender relations in a situation where a plurality of normative structures informs human interactions (Bentzon et al., 1998).

Commercial sex workers have defined conditions of work or working preferences by regulating themselves on the streets while guest houses had their rules and regulations on payments before keys to the rooms are given. When commercial sex workers are not paid by clients the fee as agreed or when the time is over, for example if the period is ‘short’, they make noise to attract guest house attendants who come to their rescue.

This methodology was instrumental in helping me to understand the various factors that affect why it is still difficult to curb commercial sex work and talk about rights of commercial sex workers because of the control- ling forces that they create. It also gave me a framework through which I was able to examine the interaction between statutory and court determinations on the one hand and other normative structures and institutions on the other.

Gender perspective

This perspective recognizes that men and women have different roles imposed on them and these different roles and expectations create an imbalance of power between men and women. The socially and culturally con-

22 structed roles disadvantage women and legitimize the continuation of oppressive relations. This results in less educated and empowered women who turn to commercial sex work as the only alternative work from the few options available. Gender perspective is important in examining the position of women commercial sex work- ers in a society in relation to men, and the power hierarchies and what these gender differences and identities mean for commercial sex workers in terms of their business. This perspective seeks to position women in the same hierarchy as men so that women have equal opportunities.

Feminist perspective

This perspective sought to challenge the subordinate social and legal position of women in relation to men in society and to see how women’s position can be improved. This therefore calls for the removal or amendment of the laws that affect women and leave men free. Ugandan laws on prostitution, even though they are gender neutral, affect women and not men because at the time of arrest it is only women who are arrested and taken to court.

Methods of data collection

The approach I used for collection of data from the field was multifaceted. Given that the study projected a sensitive, personal but prevalent social problem, I was of the opinion that no single method was most appropri- ate. So I had to use different methodological approaches for different people. The following were some of the methods used to get information from different sources.

Group discussion

I managed to interview 98 respondents in group discussions. These included police officers at Central police station (CPS, Kampala), Wandegeya police station, Katwe police Station, Kawempe police station, local coun- cil members of Kamwanyi Kabala gala cell, men and women in Bwaise kimumbasa slums, women in Wandegeya Katanga slums, women in St Balikuddembe market, and some men on Nkrumah road, as shown below in table 1.

TABLE 1: RESPONDENTS WHO WERE INTERVIEWED IN A GROUP DISCUSSION

Location of respondents Number of respondents

CPS Kampala 17

Katwe police station 6

Kawempe police station 7

Wandegeya police station 10

Women in st. Balikuddembe market 20

Men on Nkrumah road 6

Women of Wandegeya Katanga slums 11

Men and women of kimumbasa cell Bwaise 15

Local council members of Kamwanyi cell kabala gala 3

Total 98

This method of collecting data was useful because people interviewed in this manner were able to express their views freely, as I was seeking a general opinion from them and not the personal individual experiences of commercial sex workers. Some asked me whether I had ever seen them on the streets as commercial sex workers or negotiated with them. When I asked about their personal lives or as to whether they had ever picked up a sex worker from the streets, the interviewees were not free to talk or just withheld information deliberately.

23 That notwithstanding, the group discussions helped me reach many people and I got a great deal of information in a short time that may not have been possible had I approached them individually, given that some of them were asking for money before I got information from them – especially the commercial sex workers. This helped me to gain insights and understand the attitudes of the people interviewed and discuss issues around the problem of the commercial sex trade in Kampala and how the law has unsuccessfully been used to curb it. Interviewing commercial sex workers in a group was not possible because they did not want their friends to know why they were in the business, the problems they encountered and the tactics they use because this was seen as a source of confrontation while on the streets waiting for clients.

Participant observation

Because the research involved asking very personal questions, I used this method of collecting data by partici- pating myself. This was done by standing on streets that were known to be for commercial sex workers at night. This helped me establish how newcomers to the trade are teased by those more senior. I was told to go and register and when I inquired where, one woman told me to go to offices which are non-existent. During the interviews I was informed that this is how newcomers are teased therefore I wanted to get it from the horse’s mouth. I was informed by commercial sex workers that it is men who approach women for services not the other way round as it is always alleged. Therefore, I proceeded on the street to confirm it. I was approached by a vehicle, it stopped and I started negotiating with a customer but I later told him I was doing research. I made an appointment with him and I interviewed him on why men seek out commercial sex workers.

Therefore, this method was exploratory for me and I managed to get both sides of the story from commercial sex workers and their clients.

Sampling

As already stated in the first chapter under geographical setting, this method was used in sampling places mentioned and picking a few respondents because as time went on I realized that the information I was getting was the same therefore there was no need to select as many respondents as I could in one particular location.

In-depth interviews

This kind of interview was mainly applied while interviewing or getting information from commercial sex workers. I conducted a total of ninety five (95) in-depth interviews. This was done by way of introducing the research problem to the interviewees, then I would let them narrate the story from their own perspective with- out much interruption and restrictions. This type of interview was very useful because it enabled me to collect detailed accounts of women and their lived realities and experiences with the commercial sex trade and how the law and criminal justice system treats them when they are arrested. From their narratives, I was able to see the gaps that exist between the lived realities of women and the law itself.

Passive observation

I also carried out research as a passive observer. By going to the streets, hotels, slums, disco halls, bars and guest houses to see how these women conduct themselves or lure clients or as to whether they insist on using condoms when they get customers. The demeanour of the women and their behaviour gave some insights into why this type of crime is difficult to curb – despite arrests that are carried out almost every month with a view of reducing commercial sex workers on the streets, there are increasing numbers every day. As Agnete Weis Bentzon (1998), put it:

‘Observing the subjects of a study interact with the society, their families and officialdom helps reveal why certain events occur and what influences the behaviour and attitudes of the subject population.’

24 Interviews with key informants

Key informants were chosen mainly because of their expert knowledge and working experience in different structures and institutions that interact with commercial sex workers. Key informants were interviewed and these included the magistrates, court prosecutors, police officers, bar attendants, priests, pastors and members of parliament, Non-governmental organizations dealing with issues related to commercial sex workers, guest house attendants and local council members in areas that are known to be havens for commercial sex workers. These were chosen not because they had expert knowledge in respective institutions but because most of them dealt with commercial sex workers on a day-to-day basis or when they were arrested. This therefore enabled me to get first-hand information from them based on women’s lived experiences.

The key informants were also chosen because they represented various other normative structures and orders that played a crucial role in generating and upholding rules which they applied or invoked in solving commer- cial sex work cases that were brought to their attention, especially, for example, the guest house attendants.

Priests and pastors were interviewed because of their social status in the society and their influence on people’s morals and behaviour through preaching. Police officers, magistrates and prosecutors were important because they would enable me to understand the attitude and actions of the criminal justice system in dealing with the issue of commercial sex workers.

Non-governmental organizations in the area of commercial sex work were chosen for purposes of establishing the magnitude of commercial sex workers in Kampala district and how they are handling the issue. It was established that most of them are interested in those on highways upcountry because the ones in Kampala are a bit too knowledgeable and difficult to organize. Some organizations were interested in young female commer- cial sex workers for purposes of rehabilitation and not those above 18 years. Parliamentarians were chosen because of their positions in society and their influence in changing the laws, as well as what they thought would be the right options, taking into consideration that the town and its suburbs are now flooded during the night because of the large numbers of commercial sex workers on the streets. Parliamentarians were difficult to access despite the fact that appointments were made. This was because at the time the study was being con- ducted the country was having campaigns for the presidency and members of parliament. But I managed to interview six members of parliament.

Library and internet research

I carried out this research before and after the fieldwork in order to lay a basis for what I was researching. Because commercial sex work is a global problem affecting most countries, I considered both international and national literature available on the subject. The national literature was considered for purposes of triangulating the information that already existed in those publications with the findings from the field with a view to deter- mining the way forward.

This method was useful in helping identify the gaps in the already written literature to the effect that women in commercial sex work were forced into the business or that they didn’t join voluntarily. This was not the case for Uganda, Kampala district, in particular, as most women joined the trade willingly and this was what enabled me to look for ways of filling those gaps and provisions for change to improve the situation for commercial sex workers.

Data recording

Respondents freely discussed the issues and answered the questions; thus I did not experience many problems in recording data because I understood the language that most of the respondents used. The advantage of this method is that I kept the information gathered as one piece throughout the research, hence it was easy to refresh my memory while typing up the findings.

25 Problems encountered

There are places where I went expecting to find some information and I ended up without any. I expected to find records about the numbers of commercial sex workers who have been arrested at police stations that usually round up commercial sex workers but I was told it was impossible because they are always in big numbers therefore they are usually not entered in the lock up registry.

This study was not simple for me, because I had to work overnight since most of my respondents’ work starts at around 8.00 pm. Aside from the issue of time, some women were not willing to be interviewed without me paying as if I was a customer. Some were even rude because they have been interviewed a couple of times and nothing had changed apart from the information being published in the newspapers.

26 CHAPTER FOUR Commercial sex work is a reality in Kampala: Men seek out the services of sex workers

With the commercial sex trade becoming the last resort of the increasing number of economically marginalized women, it should be noted that commercial sex work as an institution can only be understood by exploring the economic ideological base on which it rests. Global impoverishment, development models that pursued dis- crimination against the majority and large-scale migration, to mention just a few factors, have all had an impact on its growth.

To embark on the study of the forces that drive people into the commercial sex trade, one must also take into consideration the society in which it thrives, that is to say it has a clear economic and ideological base and is related to larger social, economic and political processes. Though governments all over the world have used the instruments of law as a means to deal with commercial sex workers and their work, they fail to look at the reasons why people are in the trade in the first instance and why they remain in it.

Therefore this chapter outlines the findings from the field. These are discussed and analyzed in relation to the assumptions that were formulated before going to the field.

Commercial sex work has an economic base which tends to interact with and be related to the rest of the economic system, making it a labour transformation process rather than a moral issue (Pheterson, 1989). The commercial sex trade will survive as long as the social structures surrounding it and contributing to it prevail and probably that will be forever.

Commercial sex workers’ clients are men from all walks of life in the community. Many of them have visited commercial sex workers almost every day for years. There is a need to study the factors that motivate these men to visit commercial sex workers every day. Respondents revealed that no romance or foreplay is expected, as this is a waste of time. There is no emotional attachment to the clients; one wonders why men frequent commer- cial sex workers,,,,,, given the circumstances. On average most women had different customers probably be- cause they alternate their areas of operation constantly. A few had regular customers and those that had devel- oped a friendly and trusted relationship with the respondents and had, in most instances, treated them kindly as their ‘wives’. Some regular clients were close to the extent that the commercial sex workers took them to their place of abode and treated them as their boyfriends by giving them water for bathing, food and what any other man receives from his wife.

During an interview, a respondent was asked what they thought motivated such men, she responded:

‘Some customers come when their wives have given birth and they are not supposed to have sexual intercourse with them for months. This is when a regular customer will be at my place almost every day.’

When such a relationship has developed, commercial sex workers receive gifts from their regular clients such as money for rent plus the usual charges for sexual intercourse. Demand goes with supply, women stay on the streets knowing that there are men out there who are interested in their services. A male respondent had this to say during interviews:

‘Men fear responsibility, that’s why they opt for commercial sex workers; some believe in change, or variety, slender, fat, from the west, north and central region.’

27 A big number of respondents who were interviewed could tell what type of men or clients they had while some did not know. Reasons advanced for not knowing were that they did not bother so long as they were paid their agreed money; the rest were non-issues to them. This is illustrated below in the table.

TABLE 2: CATEGORIES OF THE CLIENTS OF COMMERCIAL SEX WORKERS

Type of client Number of respondents

Tourists 29

Businessmen 25

Students 10

Security officers 9

Government officials 15

Did not who they are 7

Total 95

A number of respondents had sexual intercourse in their clients’ vehicles. These were clients who wanted ‘short’ encounters, especially at night clubs, such as Silk, Vogue, and Sax Pub. Most of them could not take their clients home because they had dependants whom they lived with and did not know that they were commercial sex workers.

‘My mother asked me where I work at night I told her in Mukwano factory knowing that she will not get time to look for me. Because the kind of work I do is not seen as good.’

Bargaining for sex

According to the respondents the price is either determined by the client or the sex worker and sometimes it is negotiable between the two but this depends on the day of the week, the time or the type of customer. The reason is that if it is a weekend, the prices are high because there are more customers than during week days. ‘Foreigners’2 were found to be good customers because they did not always haggle about the price and could pay more willingly after sex, compared to nationals. For foreigners, commercial sex workers do not name the price apart from asking whether it is ‘short’ or ‘long’3 for purposes of knowing for how long she will be away, the customers normally pay more than what they would have charged them if they were to negotiate.

Customers who pay for ‘long’ services buy drinks and food for their companions including an entrance fee to a discotheque or other entertainment places such as Afrigo band, Eagles Production band and other entertainment places around town.

Most respondents interviewed prefer ‘short’ sessions even if it has a low pay but has a high turnover and it is more time saving than ‘long’sessions. The reasons advanced were:

‘Six customers for ‘short’ are far better than two or three customers for ‘long’ because this entails sleeping with a customer for whatever sexual encounters he can have rather than a ‘short’ which is just timed according to the money the customer is willing to offer.’

2 ‘Foreigners’ according to commercial sex workers meant a person with a pale colour, ‘bazungu’. 3 ’ Short’ is a term used by commercial sex workers to refer to sexual intercourse which is timed or agreed upon according to the money a client is willing to pay and ‘long’ takes more time or the whole night, regardless of the number of sexual encounters.

28 Peak hours of operation

Time of operation varied depending on location and respondents. Respondents revealed that those around streets like Luwum, Market Street, Kampala road and the post office usually offer ‘short’ services in the early hours of the evening to clients on their way home after working hours. Those at Nile Avenue and Speke hotel claimed that the trade booms at midnight and thereafter as will be shown in the table below. For location of places below refer to the map.

TABLE.3: PEAK HOURS OF OPERATION.

Location Peak hours

Night clubs Midnight - 3.00 AM

Kabala gala 1.00 A.M - 3.00 A.M

Nile avenue 10.00 P.M - 2.00 A.M

Speke hotel 10.00 P.M - 2.00.A.M

Kansanga 11.00 P.M - 2.00 A.M

Sax pub After midnight till dawn

Wandegeya Katanga slum 1.00 P.M - 10.00 P.M

Bwaise kimumbasa cell 2.00 P.M - 11.00 P.M

Kibuye/ UTODA 8.00 P.M -12.00 A.M

Night club peak hours are such because, according to respondents, those are the peak hours of operation of the night clubs. Women go out with clients for ‘short’ before they resume their night out in the clubs afterwards. Trade booms after 11.00 p.m at Al’s pub Kansanga because that is the place that is frequented by foreigners or ‘bazungu’ who are the most targeted clients of commercial sex workers. Sax pub booms later in the night because most commercial sex workers who have failed to get any clients wish to try their luck before they retire. According to respondents a client ceases to matter after the sex act and there is no follow up unless he is willing to go for another encounter, be it ‘long’ or ‘short’.

A client is expected to finish the game quickly lest he pays more if it is ‘short’ or is ordered to stop the sex exercise since this type of sex is always timed according to the money the client has offered. The number of clients per woman or girl in Kampala ranges from one customer to seven per night, seven on a good day or weekend and two on a bad day or weekday. A few respondents had regular clients with whom they had devel- oped friendly relationships.

TABLE 4: RESPONDENTS WITH REGULAR CLIENTS.

Type of client No. of Respondents

Those with regular clients 25

Those without regular clients 70

Total 95

Some respondents revealed that they never wanted to associate with clients who wanted to be treated as regular clients because they preferred to remain available to whoever is there at the time because this might be seen as a marriage relationship. One respondent had this to say:

29 ‘I got one customer who liked me, he wanted to be a regular customer, I accepted; but after some few months he started behaving as if I was his wife or married to him. He wanted me to account for where I used to go and what I was doing there. This prompted me to leave him because he was not my husband to become jealous of my other clients,,,, after all he found me in this business. Did he expect me to leave because he was a regular customer?’

While many studies highlight the tragic stories of individual commercial sex workers, especially of women and children deceived or coerced into the practice, about a third of commercial sex workers in Kampala interviewed for the study said it was ‘friends who showed them the way to earn money easily’:

‘I had gone to Sax pub with a friend to have fun, a man approached me and my friend negotiated for me. That day I slept with four men and I earned 30,000 shillings.4 That’s how I enrolled in the busi- ness, the following day I negotiated for myself.’

Self-management

From the beginning of this study, I had an assumption that these women were in this business because certain people were benefiting from services rendered by them. This was not the case, I found out that these women were managing their business and no one had a say on whom to go with or how much to charge a client. Some have been in the business for some years as one stated::

‘I started the business myself I was not introduced by any person.’

‘I have been in this business for two years now; I looked for jobs and failed to get one since I never went far in school. I was told by a friend don’t suffer you can join me on the streets and get money to keep you surviving. When I started I was shy and I never used to approach men. The first day I got 10,000s (ten thousand shillings). I spent the whole night with this man it was ‘long’. I had no love for him, I just wanted money. No person taught me or told me to charge a certain price.’

Even though some negotiated with clients on behalf of the new entrants, the money was paid to them by the clients before the act and not paid to the ones who introduced them to the business. A respondent had this to say during the interview:

‘A friend who was in the business before introduced me into the business. I used to see her with money yet I used to go hungry and she negotiated for me with men and I would just go and be paid after the act. It took me about a week and I got used to it.’

Friends who assist these women don’t follow up the issue to know how they are faring; this disapproved my assumption that I went with in the field...

Guest houses

Guest houses were found to have an impact on the business of commercial sex workers in the sense that owners benefit by hiring rooms out to women for a night and they receive money in return. Most of them were located in areas where one wouldn’t expect guest house services. Therefore, if women were not standing around wait- ing for customers, there wouldn’t be business for these guest houses. Most respondents preferred guest houses as compared to other places where sexual intercourse can take place. Reasons advanced were that guest house attendants, who are usually men, always protected them or came to their rescue when a client refused to stop after his minutes are over. A respondent had this to say during the interviews:

4 Thirty thousand Uganda shillings is equivalent to 16 US dollars. This can buy 5 kgs of meat.

30 ‘I conduct my business from this place (Kibuye / UTODA) because there is a guest house. When I report for duty I just pay for the night, get a room and the keys then I start my work. When I get a customer it’s a matter of bringing him to the room rather than him taking me to a place I am not conversant with. Sometimes when a customer continues the act after his time has elapsed guest house attendants come to intervene.’

There are very many guest houses and hotels around town and all these are filled to capacity during lunch hours by commercial sex workers

Commercial sex work is a means of livelihood for many women and girls without formal education or training

There are several explanations that researchers have advanced on why commercial sex work is a means of livelihood to many women without formal training or education since the advent of urbanization brought about by colonization. The development of industries with vast numbers of players in the competitive global market, the rapid growth and congestion of large cities and the insecurity and uncertainty of employment gave prostitu- tion the impetus it had in the 19th century (Kombo, 2000). The concept of modernization, that included formal employment and urbanization was transferred to the colonies and that was how towns and cities developed in Uganda. One respondent had this to say:

‘I went to school but I never got far. Therefore, I cannot find a decent job; even those that claim to have reached university are on the streets without jobs. Even if am to get a job, it will not fetch me enough money like this one.’

Kombo argues that modern industrial societies left most women almost no alternative except commercial sex work. Accordingly most commercial sex workers belong to the lowest stratum of society and women are not treated according to the merit of their work but rather as sex objects. This is a plausible explanation however it does not clearly state why some women opt for commercial sex work instead of available lawful jobs. The answer could only be found in the lucrative nature of commercial sex work or a mindset that individuals may have towards commercial sex work.

Jeffrey (1997) asserts that social inferiority imposed on women is responsible for commercial sex work world- wide. According to her, commercial sex work arises from subordination of women. This is a practice in which the victims are overwhelmingly women and children, and the perpetrators are almost entirely men who exploit the powerlessness of women and children economically, physically and through adult male dominance taking advantage of submission of women and children. A respondent had this to say:

‘I was pregnant and staying with a man; he left me and went on a long journey without leaving me any assistance. I decided to go to Capital pub because I heard that there are men who can give you money after sleeping with you. That day I got a customer; he paid me 10,000 (ten thousand Uganda shilling) this was the first time in my life to get ten thousand from my own sweat.’

Unemployment and low wages have been cited as some of the major reasons why women engage in commer- cial sex work in Kampala district. As a respondent stated:

‘A friend approached me and said that there is work to be done, that you can go and stand on the streets and get men to sleep with and be paid. Before I used to work with my sister in a bar and she used to pay me only 1000 (a thousand Uganda shillings) daily this was very little money to cater for my basic necessities.’

This therefore means some working girls and women went into commercial sex work out of sheer necessity, others because of the cruel and abject circumstances of their homes. In other words an economically challenged ‘house girl’ or a domestic worker, more or less treated as a slave, never having the right to her own life and worn

31 out by the whims of her ‘mistress’ or ‘master’ can find an alternative in commercial sex work.

‘I was employed as a house girl for seven years but I was mistreated since I never went to school. I persisted but I was suffering, I used to cook food for the family and I would eat after they had finished. If the food was finished I would sleep hungry. Even the money they were paying me was deducted when I broke a plate or glass. That’s why I ended up in this business.’

It may not only require a person to come from a family not well organized or low class to become a commercial sex worker. The majority of people in Uganda are considered to be poor and thus of low class. In fact whoever decides to engage in commercial sex work moves to towns or cities therefore it might require a certain mindset for one to become a commercial sex worker:

‘ I left the village and came to town for purposes of looking for a job but when I failed to get one because no one was willing to offer me one. I decided to start this trade and am not regretting the choice of my job, because I have managed to look after myself and pay rent for the house I live in.’

Workers who were moved from the rural areas were kept in the city without their families. Women who were allowed space to exist on the periphery of the city provided sexual services to men. These two conditions allowed for the existence of different kinds of sexual relations that have been variously described (Ssewakiriyanga, 2001). This explanation provides for the origin of commercial sex work in Uganda’s urban settings. Married men could not move frequently to their rural villages to meet their wives so they became clients to women living on the fringes of the cities and exchanging sex for money or other material gains.

‘I was married at the early age of 16; when I was 27 my husband left me in the village and came to Kampala to work and had not returned for 5 years. I looked for transport and came to town only to find that he had married another wife and they had two children. He said he was not interested in me any more therefore I should look for another man. Since I never reached far in school I decided to start a small business of selling tomatoes but the money was not enough for my needs, I ended up in this trade and am happy that way.’

Dr. Sylvia Tamale a feminist and the Dean of Faculty of Law at Makerere University also blames societal subordination of women and patriarchal control of their bodies and sexuality and she advocates for decriminalization of commercial sex work (Emasu, 2004).

Sex work is usually better paid than most of the options available to young, often uneducated, women, in spite of the stigma and danger attached to the work. In all areas covered sex work provided significantly higher earnings than other forms of unskilled labour. In many cases, sex work is often the only available alternative for women in communities coping with poverty, unemployment, failed marriages and family obligations in the nearly complete absence of social welfare programmes. For single mothers with children it is often a more flexible, remunerative and less time-consuming option than factory or service work.

The economic vulnerability and limited career options of poor women are significant factors in their recruit- ment into commercial sex work. Poverty is one precondition for commercial sex work, in addition to the female gender. A key informant who was a female member of parliament said:

‘When looking at the subject of commercial sex work unfortunately most of us view it through the lenses of prejudice. We never bother to delve deep into the causes of what makes a woman sell her body. This escalation in commercial sex work is a symptom of an ailing economy. The World Bank may say the economy is improving but this is only so for a small section of our community. The rest live in abject poverty. That situation of abject poverty in Uganda affects young men who prefer to have casual sex affairs because they cannot afford to cater for a girlfriend financially. We are not about to see an end to commercial sex work. And the reality is that as long as there are buyers, there will always be sellers and the buyers too are on the increase. As the economic solution continues to favour

32 paper qualifications, more and more unemployed women in urban areas are increasingly going into commercial sex work. But even the ones with paper qualifications find their salaries inadequate and unfortunately, many find themselves engaged in commercial sex work on the side. I am not the one to say that commercial sex work should be legalized but I would urge government and non-governmental organizations to try and set up many income generating projects for women. Instead of selling their bodies they will earn from decent employment.’

Lack of education was given as a precursor to entering commercial sex work. The most frequent reason given by these women for leaving their homes was that commercial sex work would provide better pay. Underem- ployment, unemployment and poverty were principal reasons for entering commercial sex work.

‘I prefer to remain in the sex industry because it does not require capital to begin it like any other business, apart from you having courage and negotiation skills. Even those who are doing business, like running shops, are indebted to the banks but I am not indebted to any financial institution and I do not regret taking this option.’

TABLE 5: LEVEL OF EDUCATION OF THE RESPONDENTS

none 20

P1-P7 32

S.1-S-4 22

S.5.S.6 16

Tertiary/university 5

Total 95

As pointed out earlier under geographical setting and methodological frameworks, Kampala district is a big area. I cannot claim to have interviewed all commercial sex workers in the district. Therefore whatever is referred to here as information obtained from commercial sex workers is a representation of ninety five com- mercial sex workers in Kampala district.

During the study, I found out that there were different types of commercial sex workers in Kampala. This depends on the level of one’s education, working location, appearance, economic levels or marital status, as discussed here.

Low-income earners

This type of commercial sex worker charges any fee because they are desperate. What they need is just a few shillings to buy food for that night, once that is obtained then they can start operating like their counterparts. They swarm the streets at night in search of business – their work begins at sunset and continues up to dawn. These include divorced women and single mothers. They come to the streets mainly to earn a living and sur- vive. A respondent when interviewed had this to say;

‘I was in primary six; I got a boy friend who promised to marry me if I became pregnant. I conceived and when my father learnt of it he threatened to kill me: that’s why I left the village and came to Kampala. I later gave birth while staying on the streets and learnt this business since I used to see very many women doing the same as a source of their livelihood.’

33 Low price class

The low price class of commercial sex workers for the purpose of this research are women who operated from slum areas, especially in Katanga, Bwaise kimumbasa, where they live in shanty houses with no electricity, poor ventilation and no basic facilities such as bedding and cooking utensils. Sexual services take place in small rooms especially set up for sex, containing a small mattress. The women were not literate and they could not express themselves in English. Their appearance was not like for other commercial sex workers that were interviewed during this study because these advertised themselves by being smartly dressed. They cannot af- ford to hang out in bars because they don’t want to spend their little money on drinks. Their customers were from the ‘bottom of the pile’. When interviewed as to why they operate from slums and not on the streets one had this to share with me:

‘If am to go on the streets around Kampala road, Market street this will mean, spending around 5000 (five thousand shillings) on transport and food. This is on the assumption that I will get a client. What if I fail to get one how will I return home? That’s why I decided to work from here. What matters to me is whether I am getting customers more than where I conduct my business from.’

Oppression in marriage has also contributed to the number of women on the streets of Kampala. Men enjoy the freedom to define their rules and norms in matters of sexuality, women find themselves in marriage relation- ships to gain social acceptance in the society. Women being victims of exploitation and discrimination resort to the last option of using their bodies for survival.

‘I was married and a housewife without any source of income. My husband used to mistreat me by not providing money to buy food for lunch. Whenever I would complain he would ask me as to what stopped me from studying? If that was not enough, he married another wife. I also started this trade and I have managed to look after myself, pay rent and pay for my sisters’ education so that they don’t suffer as I did.’

The high class

The high class includes those who were semi-literate and could express themselves in English. Most of them said they were in the trade to earn ‘easy money or in the hope of capturing a well-to-do clients, especially the ‘foreigners’. They operate using mobile phones and are found around Speke avenue and Sheraton Hotel. They are well dressed, wear expensive jewellery, perfumes and make-up. Some of them, it was alleged, own cars which are sometimes left to them by foreigners who were their clients. It is difficult to recognize them as commercial sex workers unless you are informed by those who know them well. This type of commercial sex worker charges high prices and sometimes they stay with their clients for a long period as their ‘girlfriends’.

‘I don’t have any job, what I do is to sit in these hotels and become friendly with foreigners so that I can get one who will take me on as a girlfriend. I have survived this way and now I own a house and a vehicle. I got the vehicle from my client and the house I built from the money I earn from the busi- ness.’

Invisible class

This type of commercial sex worker, whom I refer to as the invisible class for purposes of this research, was revealed by respondents who were men. They are found in bars and lodges, they constitute persons who are willing to trade their bodies for sexual satisfaction for money or any other gain but who are working under the disguise of being barmaids, lodge attendants, waitresses or receptionists. These women engage in the trade during the course of employment. They cater for the needs of customers of the bar, guest house or hotel. During the interview a male respondent had this to say:

‘I have never bought a commercial sex worker on the streets. I normally pick one from the bar where I

34 drink from. She works there as a receptionist. Therefore, it is not only those on the streets that are in the business. There are very many that are not known and hide under their jobs.’

Pleasure for self

Some commercial sex workers revealed that they were a working class with money to spend for their pleasure. Some are married, and others are single parents. This type of women engages in commercial sex work not because they are looking for money. The reality is that these women are there for personal sexual pleasure. As one woman said:

‘I have been in this business for 9 years now. When I had just spent three years, I got a customer who asked me as to why I was in this business. I told him I was a student who was looking for school fees. He inquired whether I was ready to leave the business if he paid school fees and married me later. I accepted, we started staying together; this man bought for me a vehicle, built a house. When I com- pleted my education he got a job for me but the problem was that I was a second wife therefore he used to come alternate days. He would stay three days at my place and four days at his first wife. I decided to join this business again because I was used to sleeping with men every day and this one was just sparing three days to me; these were not enough.’

There were also what I classify as part-time commercial sex workers who are married but during lunch hours they use men for sexual services (not their husbands) in hotels and guest houses in town. One of them, a friend of mine said:

‘I have another man outside my marriage. This is not because of money or economic reasons it’s because of pleasure. My husband is not satisfying me in the bed, we talked about it and he said I am becoming a prostitute. Therefore, I decided to get one to satisfy my needs whom I always meet during lunch break and sometimes in the evening hours as am returning home.’

TABLE 6: AGE OF RESPONDENTS INTERVIEWED AND THEIR MARITAL STATUS

20yrs and below 21-35yrs 36yrs and above

Single 7 15

married 5 8

Single parent 12 17

widow 7 4

separated 11 9

Total 95

The under-age

During the study I found five girls on the streets who were below 18 years. As indicated in the table they claimed to be 20 but on interviewing them as to when they were born the years stated could not add up to 20 years. Four of them claimed their parents or other family members died during the war in the north. This I did not dispute since they could not express themselves in Luganda which is the vernacular language used in the area of the study. Political insurgence in the north-east has also caused the influx of many youngsters into the city who were left homeless and they have diverted to the sex trade in order to maintain themselves within in the city. One revealed:

35 ‘I started as a street child, I used to beg for money to eat and help in carrying people’s luggage and in return I was getting a little money to buy food. Since I was sleeping on the verandas I used to see women getting men for money and that is how I started. Now am staying with a former street girl like me and we get men in return they give us money which we use to pay for rent and buy clothes and food.’

36 CHAPTER FIVE:

The way it is

Although commercial sex is illegal in Uganda, not a single woman has been convicted of the offence of practis- ing or being engaged in commercial sex work despite the fact that the law has been in our statute books since the colonial era. Section 136(1) of the Penal Code Act states:

‘That every person who knowingly lives wholly or in part on the earnings of prostitution and who solicits or importunes for immoral purposes is guilty of an offence and liable to imprisonment for seven years.’

The problem is how that law can be enforced in a country like Uganda where the legal principal governing court proceedings is that an accused person is deemed innocent until proven guilty. Finding a woman standing along the streets and other places cannot constitute evidence beyond reasonable doubt that the woman in question is there to solicit or importune for immoral purposes. This serves to show that the law in this instance is not specific and thus enforcement of the legislation available is not only difficult but also ineffective. Many pre- sumed suspects are often set free by courts or charged with a lesser charge such as being idle and disorderly persons. Therefore, if every woman found on the streets at night was to be labelled a commercial sex worker and prosecuted then the freedom of women to move at night freely like men would be curtailed.

Prosecutors’ perspectives

Prosecutors encounter a lot of problems in prosecuting an accused person on the charge of prostitution. As a result, prosecutors are reluctant to confer a charge of prostitution on a suspected sex worker. So regardless of the public outcry of an increase in sex workers, none has been taken to court and had a charge of prostitution brought against her. I looked at records of Kampala city council court and Nakawa magistrates’ court and there was no record regarding the prosecution of any prostitution case. A court clerk at Kampala city council court told me that since he began serving as a court clerk, he has only witnessed one case of prostitution being brought to court; however, it was withdrawn before hearing could commence.

‘I have been serving as a prosecutor for 10 years. I have never received a case of prostitution. They always come on charges of being idle and disorderly persons’.

The problems that are faced by the prosecution include the rigidity of the law regulating criminal procedure which calls for very high standards of proof which are difficult to meet, that is the burden of proof which is strictly applied to the prosecution in prosecuting. Lack of witnesses has also hindered successful prosecution of the offenders. Witnesses fear giving evidence when called upon in cases of prostitution because African culture looks at sexual issues as a matter of secrecy and it is morally wrong to bring such evidence in an open court; is unheard of. Furthermore, lack of transport makes it difficult to ensure the attendance of witnesses even when summoned.

One of the prosecutors at Nakawa magistrates’ court had this to say:

‘In fact it has always been hard for us to establish that one is a prostitute because it is difficult to establish whether the accused person regularly or habitually holds himself or herself out as available for sexual intercourse or other sexual gratification for monetary or other material gain.’

Also the government doesn’t facilitate transport for persons volunteering information to court. There is no

37 direct benefit that accrues to witnesses whether financial or otherwise as a result of attending court. Besides the unavailability of facilitation by way of transporting witnesses, the ill-equipped prosecution that keeps asking for adjournments discourages the attendance of witnesses.

The legal situation is complicated further by section 134 A of the Penal Code Act which defines a ‘prostitute’ as a person who in public or elsewhere regularly and habitually holds themselves out as available for sexual intercourse or gratification for monetary or other material gain. The question is how the police and other law enforcement officers can gather evidence to satisfy the court that a certain woman was regularly and habitually holding herself out as available for sex.

It is difficult for law enforcement officers to gather evidence to support a charge of commercial sex work. Women in Kampala district have been arrested and charged under the assumption that they are prostitutes and charged under section 167(a) (f) of the Penal Code Act as idle and disorderly persons. It states:

‘Any person who being a prostitute behaves in a disorderly or indecent manner in any public place; (f) In any public place solicits or loiters for immoral purposes shall be deemed an idle and disorderly person, and is liable on conviction to imprisonment for three months or to a fine not exceeding (3,000) three thousand shillings or to both such fine and imprisonment, but in the case of an offence contrary to paragraph (a) (e) or (f) that person is liable to imprisonment for seven years.’

Although prostitution is theoretically illegal in Uganda today, it is a common practice that the law enforcement officers do not have the ability to counter considering the ingredients constituting the offence such as ‘habitu- ally holding oneself out as available for sexual gratification and proof of material gain that are almost next to impossible to prove:

‘We arrest both men and women, but when we reach the police station men pay something and we release them because they fear for their reputation and some of them are married.’

The research revealed that 25 sex workers out of the 95 interviewed claimed they wanted to leave the occupa- tion if they could; many expressed concern about the earnings they risked losing if they changed jobs.

The way they saw it

Commercial sex work is difficult to curb and criminalization on its own is not sufficient. If commercial sex workers are chased off the streets they will operate from their homes and they would call their customers at any time because some of them leave behind their phone contacts.

Various views emerged:

‘They should be arrested if it is the only alternative, but if they’re to be taken to court to pay fines, they should be left, because the fine is too low which everybody can afford. Police should not waste its fuel chasing commercial sex workers but should concentrate on other serious crimes.’

During the study I found one of respondents who was arrested by police officers who were rounding up com- mercial sex workers that particular time of the night because she was standing on the street at night alone while waiting for someone. She had this to share with me:

‘I was around Luwum street near Sax pub when a police 999 vehicle parked and surrounded us and we were taken to the central police station, Kampala on the allegation that we were prostitutes. I explained to them that I was waiting for someone, they refused to believe me and we were taken to court the next day and charged with being idle and disorderly persons. I was advised by women in the cells with me to plead guilty and pay a fine rather than me insisting that I was not a prostitute because this will mean that I will be remanded in prison. I did as I was told and the magistrate fined me 10,000 shillings.’

38 During the research some commercial sex workers were found standing just in front of the parliament building waiting for their clients, some were just adjacent to State House, Nakasero. A police patrol vehicle came and passed by without any intervention.

‘During the interview one of the officers said that in instances where we apprehend both the women and the men, men will be charged with idle and disorderly conduct and women will be charged with idle and disorderly conduct and soliciting for immoral purposes even though we find them together.’

Much as the law has literally attributed the offence to both sexes, the law enforcement officers still victimize women only and men are left free. Therefore, commercial sex work in Uganda is still ‘feminized’ as one respondent who was a businesswoman said:

‘Police are doing nothing because they arrest and detain; tomorrow they are back on the streets unless they patrol the whole place. Policemen have interests in commercial sex workers that’s why they arrest women only and get money from men who are found with women. Those involved in the operations are usually men and they cannot arrest fellow men and in most cases customers have vehicles and are not found on the streets soliciting.’

Women are arrested because they are the vulnerable group; customers are left because they can bribe police officers. However the concept of human rights established by the United Nations requires governments to restrict their actions according to principles of justice. The legitimacy of legislation in human rights terms is dependent upon its conformity to the principle laid down in the Universal Declaration on Human Rights Article 29. This states that law may limit the individuals’ rights and freedoms ‘solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’. The right of the state to legislate on sexual morality is under question in many societies (Ann, 2000).

Courts

Courts are to blame for the increased levels and numbers of commercial sex workers. During the research I found that the courts are reluctant to give what can be looked at by the public as a deterrent sentence to sex workers such as a high fine. This is because prisons are already full to capacity and remanding these women will be a waste of time because the moment they are released they go back on the streets that very nigh

Commercial sex work is seen as a major player in the spread of HIV/AIDS and other sexually transmitted infections

Although at first glance, the public health attention to the risk of HIV infection includes commercial sex work- ers, on closer inspection, it becomes apparent that the overarching concern is for the health of the customer – decreasing the possibility of his exposure to the disease. In spite of extensive documentation that HIV is over- whelmingly transmitted via male to female vaginal intercourse, one of the misogynist myths about commercial sex work is that the woman is a vector of the disease, that she is ultimately the source of contamination of the ‘good wife’ through the husband’s weak moment. The focus on HIV in commercial sex work literature is a variant of this prejudice against commercial sex workers.

Vectors

The advent of HIV/AIDS has also marked sex workers’ bodies as diseased. If the identity of women in the sex industry can be understood as an effect of such categories as Judith Butler (1990, 1993) argues, there is a need to move beyond portrayals which construct these women as victims. Indeed, agency is found in the articulation of identities and not through the construction of a singular category or image, and imagining new grounds for a speaking sex worker subject also has implications for HIV/AIDS prevention. Before beginning the study, I thought commercial sex workers played a role in the spread of HIV but my assumption was challenged. As I

39 interviewed commercial sex workers it was revealed that these women do not sleep with their clients without any protection. This was supported when I observed the trends in the guest houses where these women conduct their businesses from. Women were seen asking for money to buy condoms from their clients whenever they were entering the rooms.

During the interviews when one respondent was asked to comment about the allegations that appeared in the national paper that about 66 per cent of the women in the commercial sex industry were HIV positive she responded:

‘I have never heard any announcement of any kind calling upon women who are commercial sex workers to go for HIV screening. I don’t know where the Ministry of Health gets their statistics from, because they have never screened us as a group.’

When HIV was first identified, sex workers were immediately named as potential carriers of this fatal, sexually transmissible disease. This reaction had immediate practical consequences. It was clear that sex workers, and possibly their clients, would be vulnerable both to HIV and to HIV-related discrimination. Responses devel- oped at different rates across the world, ranging from repressive measures to effective community mobilization and public health programmes by the governments’ communities and sex workers themselves now face the renewed challenge of making sex work safe. A woman respondent had this to say about how they have managed to go about it, despite the fact that society still views them as infectors:

‘No condom, no sex, there is no compromise about it. If the customer is not willing to use a condom that means he is HIV positive. The money he is willing to offer might take you to the death bed.’

Today, as in the past, the regulations of commercial sex work emphasize the role of commercial sex workers as infectors rather than infectees to such an extent that this view is widely accepted as ‘common sense’. In public health initiatives, the ‘public’ appears not to be concerned about whether commercial sex workers themselves contract HIV but whether they transmit the virus to their male customers (Brock, 1989). There is certainly a legitimate community interest in regulating and in some places controlling and prohibiting public solicitation, as an offence to the neighbourhood. But, these concerns apart, there is a real question as to what business the law has attempting to stamp out consensual adult sexual activity (Alexander, 1988).

According to Justice Kirby (1994), such laws never succeed but in the attempt they arm police and a whole host of officials and others with powers of oppression, intimidation, blackmail, humiliation and harassment; and drive the sex industry underground. Generally, women and men working in the sex trade have been considered as vectors of transmission rather than persons who, for many reasons, are vulnerable to contracting HIV:

‘All over the world, commercial sex workers are being made the scapegoats for heterosexual AIDS’ (Alexander, 1988).

The media has also responded with hysteria, emphasizing the role of commercial sex workers as vectors of infection and blaming them for the transmission of AIDS among the heterosexual population. As stated by Brock (1989), by blaming commercial sex workers ‘we forget that they are working women and men who attempt to maintain as much control over their working conditions, including hygiene, as possible’:

‘I don’t sleep with men I have found on the streets without condoms because I can become pregnant or get HIV/AIDS or sexually-transmitted diseases. I buy the condoms myself. Sometimes I get customers who are willing to give much if I sleep with them without a condom but I refuse because you never know their status. I have seen my friends dying because they were after getting quick money rather than protecting their lives.’

During the interview those who claimed to be married said the only person they sleep with without a condom is their ‘husband’, for the rest they used condoms:

40 ‘Otherwise if I we were not using condoms and we are HIV positive, as it is alleged, the whole country would be infected with HIV considering the number of customers we have.’

Availability and quality of condoms

As I sat in the guest houses, I observed commercial sex workers buying condoms before entering rooms with their clients. Even though there were very many types of condoms, certain types were favoured most by these women. It is difficult to ascertain which ones are good by use of the naked eye. Women were interviewed and they revealed that some were weak and they easily break.

Most of the condoms that were available were for men. A respondent had this to say during the interview:

‘I buy condoms for men because they are available in the guest house. But I make sure that I dress him myself because some men have ill motives; they can be infected and infect you also when you leave them to fit the condom on.’

Female condoms were not available in guest houses making it difficult for these commercial sex workers to be exactly sure that the condom has been worn and not relying on their clients because they can easily remove it during the sexual encounter. Even if they were, respondents revealed that they are uncomfortable and difficult to use compared to those used by men. A woman respondent said:

‘Women’s condoms are scarce here in Kampala but they are not good. They make a lot of noise during the act and they are difficult to put on or fit.’

Some clients were reported to have difficulties in the sizes of the condoms compared to their penis sizes:

‘I use condoms with my customers. The problem with condoms is that for some men, their manhood is big and condoms are too small, sometimes It is a struggle to fit the condom on the penis. Others, their penises are too small and the condoms remain loose, I have to move with a rubber band for such customers so that it can hold the condom tight on the penis to stop it from slipping off.’

41 CHAPTER SIX

‘A solution to everything’

The goal of safety and health related measures of sex work related prevention should be to reduce the health risks associated with the trade. Although some individuals and organizations believe that commercial sex is wrong and should be abolished, many sexual contacts in almost all societies are paid for. This is regardless of attempts to eliminate the sex industry by punishing sex workers, which clearly fails to end the sex industry, and programmes which assist people to stop sex work do not appear to reduce the size. Academic researchers have offered many explanations as to why people decide to sell sex. Perhaps the best one is simply that it is to meet demand. It is reasonable to assume that while demand exists it will always be met, regardless of economic and social conditions.

As discussed above, it was found during the study that commercial sex workers were already managing their safety control measures because without condoms there would be no sex. This was a positive response despite the fact that some condoms were reported to be of a poor quality.

There are interventions that would give commercial sex workers the means to protect themselves against HIV transmission and empower them to use these for the development of educational strategies to reach commercial sex workers, giving them accurate information about the ways of preventing transmission and supporting them in efforts to use these measures consistently (Cohen, 1988).

Universal adoption of safer sex practices, analogous to universal precautions in place in health care settings, is a much more effective and non-stigmatizing response. In order to offer genuine choices to people in commer- cial sex work, programmes that claim to offer assistance must offer more than condoms and safer sex negotia- tion skills. These are not only insufficient but have been shown to result in increased violence against commer- cial sex workers. It is necessary to look at a vast array of social conditions in women’s lives, which eliminate meaningful choices.

Discrimination against and vilification of commercial sex workers enhances the vulnerability to infection of commercial sex workers themselves, their clients and others in the wider community. It is argued that by criminalizing commercial sex work, their experiences of AIDS, its prevention and its treatment are suppressed.

The health dimensions of the sex sector are serious and too urgent to ignore. While awareness of the HIV/AIDS threat is high, state agencies still keep their distance from the sex industry. Any health programme targeting the industry cannot cover only commercial sex workers. Measures should also be directed towards clients, espe- cially since the chain of transmission from the industry to the population or vice versa involves clients who also have unprotected sex with their spouses or others.

Commercial sex laws should therefore be changed on a basis of issues of civil liberty and prevention of exploi- tation, which would protect public health. ‘Good health cannot be achieved in an environment where people feel stigmatized and fearful’. Therefore, it is argued, the law should be changed in favour of creating a legal framework sympathetic to sex workers. There is clear consensus that health policy will be hindered by any attempt to proscribe commercial sex workers or to penalize those involved. Past experiences suggest that re- pressive measures do not eradicate commercial sex work, they simply make it even more stigmatized and covert than it is already. According to Plant (1990), AIDS compels us to re-examine traditional methods of responding to commercial sex. He stresses that long established policies must be reconsidered urgently in light of the fact that AIDS is a much bigger threat to society than commercial sex.

Decriminalization of commercial sex work and some kind of regulation of the sex trade is required; if this is

42 done working conditions would be controlled and condoms could be provided at all times. Commercial sex work would then get health insurance, workers’ compensation, social security and disability insurance like other workers, making it possible to stop working when sick or injured. Official recognition of the activity, including maintaining records about it, would be extremely useful in assessing, for example, the health impact of the sector, the scope and magnitude of labour market policies needed to deal with workers in the sector and the possibilities for extending the taxation net to cover many of the lucrative activities associated with it.

The approach taken by those who seek law reform should combine removal of criminal penalties against those who work as commercial sex workers with efforts to empower those who work in the trade, minimize commer- cial sex work and protect young people from exploitation (Neave, 1994). All women need to be convinced that commercial sex work law reform is their concern:

‘The real purpose of laws which punish commercial sex workers is to reinforce male values about sex, uphold the double standards and discipline and divide women by treating some as respectable wives and others as whores. Women need to stand up against this process, and recognize that they as well as their stigmatized sisters are affected by laws which criminalize those who sell sexual services’ (Jurgens, 1995).

Regulating commercial sex work would reduce the problems of furtiveness and auxiliary criminal activity associated with it; laws that prevent commercial sex work from working legally also prevent education about safer commercial sex work. If commercial sex work in Uganda is legalized, regulated and decriminalized, this will effectively promote safe commercial sex work, and people involved in outreach to commercial sex workers must make legalization, regulation and decriminalization a priority.

In order to solve the social problem of commercial sex work, the only viable approaches are legalization, regulation and decriminalization. Why are these the only options left? It is simple – all else has already failed. Existing policies are ineffective because they fail to punish men who encourage and benefit from commercial sex work as well as the fact that enforcement is selective and discriminative.

The range of approaches to commercial sex work issues generally boils down to three alternatives tacks: prohi- bition or criminalization, decriminalization and legalization or regulation. Prohibition means that commercial sex work activities are completely illegal, which is the present situation in Uganda. Decriminalization brings about a situation in which no criminal laws apply to those activities; this could be accomplished by simply rescinding all legislation in this area. While legalization or regulation means that new laws are passed allowing commercial sex work under certain conditions, regulated by the state or other actors restricting the vice to certain activities but when there is a demand for more, this is likely to create two practices legal and illegal vice. If the line is skilfully drawn, in consultation with both buyers and sellers, it is possible to reduce this shadow market to one of little consequence but a further question must be asked: is the state the best agent to be doing the regulating and if so, by what means? Below is a table showing attitudes of the general public on approaches Uganda can take on the issue of commercial sex work.

TABLE 6: ATTITUDES OF THE GENERAL PUBLIC ON REGULATING/ LEGALIZING OR DECRIMINALIZING COMMERCIAL SEX WORK

Number of respondents

Should be regulated/legalized 132

Should be decriminalized 84

I don’t know 21

Total 237

43 There has been much debate over the last few decades about commercial sex work law reform. In the course of discussions several terms are used to indicate current or preferred situations, alternatives and legal strategies.

Legalization

The critics of legalized commercial sex work insist sex for money is wrong because it is harmful to commercial sex workers. They claim commercial sex workers are victims of physical abuse and frequently suffer from homelessness, alcoholism and dependency on other drugs. These critics report that commercial sex workers have been sexually and or physically abused while growing up. What they do not report is a plan to help these commercial sex workers. Their rationale is a status quo model, which does absolutely nothing to help these women. Instead of managing the vice through the medical and social interventions accompanied by regulation of the industry, critics of legalized commercial sex work would rather adopt prohibition and cold abandonment. When they mention neighbourhood safety, they do not offer meaningful alternatives. Their plan is to heighten police patrols, encourage undercover sting operations and stiffen penalties (http//www.liberator.net/articles/ prostitution.html.).

There are many benefits that can be derived from the legalization of commercial sex work. First the safety of commercial sex workers would be greatly increased. According to judge Frits Ruter’s experience (The Record, 1989):

‘You cannot solve social problems by making them taboo. Commercial sex work is the oldest profes- sion in the world. It has been unable to be controlled in the past two thousand plus years, so legalizing remains the only alternative remaining. With the legalization of commercial sex work, the risk, thrill and sense of adventure will be gone which acts as an aphrodisiac. With this activity no longer being frowned upon, the same thrill from clandestine sexual encounters will no longer be achieved.’

As George Carlina says: ‘Sex is legal; selling is legal; so why isn’t selling sex legal?’ if this question is an- swered by the government of Uganda today and addressed, several social problems facing our country will be addressed and resolved in the near future. It should be unlawful for commercial sex work to occur anywhere except in the licensed houses of commercial sex work. Buildings should not bear signs that can be construed as obscene or signals of commercial sex work such as a brothel. The buildings also must be located over three kms from both schools and religious structures, and situated so that they do not face main streets (www.walnet.org/ csis/papers/wijers.rights.html).

A key informant who was a director of a non-governmental organization had this to say during the interviews:

‘Rather than criminalizing prostitution, the state should ensure that a woman is as informed and free as possible. Moral arguments for criminalizing do not hold any water profitably because of the obvious double standards imposed on female and male sexual morals. The fact that in Uganda, women become commercial sex workers primarily because of economic necessity; limited skills, lack of sufficient education, single motherhood, abusive husbands all lead into commercial sex work which is neither a criminal nor a morality issue but a purely economic one for most women in Uganda. It is economic survival and therefore emancipatory for the women who engage in the profession.’

Under article 6(1) of the International Convention on Economic, Social and Cultural Rights state parties recog- nize the right to work which includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts, and will take appropriate steps to safeguard this right. In view of the above, commercial sex workers who choose their profession voluntarily should be protected.

There is a small group of commercial sex workers with greater control over their choice or decision to be commercial sex workers. In other words, those who find that in addition to the financial rewards that are associated with the profession, the lifestyle is also more appealing than that associated with traditional work. As reported in the New Vision newspaper, Kampala (Wednesday 2 November, 2005):

44 ‘it is an industry in itself and thriving at that... however the government should seriously think about legalizing this illicit trade as a vehicle of thickening the tax base. I am told the demand for these women’s services is so high that you wonder why people go into heavy industrial investments when they can just stand on Speke road and sell their merchandise. These people are raking in big bucks and its just plain silly for us to just watch them as they laugh all the way to bank as we wrestle with the Uganda Revenue Authority. An average prostitute grosses about 50,0000 shillings daily that would make 1.5 million a month. If there are 1,000 prostitutes in Uganda, they are grossing a wholesome 15 billions a month which makes it 180 billion annually. This industry is one of the neglected tax av- enues, instead of the government cashing in on it, they are busy bugging us with television tax!’

An additional motive to support legalization is a pragmatic one. Arresting and imprisoning women who refuse to be reformed into ‘good women’ and whose conduct can only be criminalized on moral grounds is a tremendous waste of taxpayers’ resources. Legalization frees authorities to spending more time and resources on the truly criminal aspect of the commercial sex industry, such as gangs buying and selling unwilling women and all children and commercialized rape victims (Ann, 2000). A busi- nessman respondent had this to say:

‘City police should stop harassing Kampala girls alone because everywhere prostitutes exist. I am of the view that prostitution be legalized to get the Uganda revenue authority the taxes it yearns for. My other argument is that there is no free sex in this country. Men give lovers money and actually its cheaper going with a prostitute than loving because the so-called lovers are very expensive. When you take a lover for an evening she will gulp four to six bottles of tusker malt beer plus roasted chicken or pork that makes it 20,000 Uganda shillings. Beers totalling to 12,000 pork 8,000 plus money for fuel or a special hire vehicle5 for seeing her off. That notwithstanding, for some you have to pay her house rent, take her to watch Eagles production, Afrigo band and the like. In the end you drain your account. A prostitute won’t take you into such rigours and expenses it’s just only the business that connects the two.’

Once the sale of sexual services is recognized as a form of work, the moral stigma attached would gradually lose its force to divide women into sexualized polar opposites. Legalization would carry a message of equality between sexes; it would treat women and men as human beings who are equally capable of determining for themselves how they want to employ their own sexuality and who are capable of making informed, adult decisions about their profession and their bodies. The public would be forced to acknowledge women, like men, have the right and ability to control their own sexuality and that women, like men, are individually capa- ble of engaging in monogamous or promiscuous sex. The image of immoral harlots would be shattered and women would no longer be divided, at least in law from each other based upon male-created categories of good and bad women.

‘You might bring in our cultural values but who cares about values these days? Why have values when your people are starving and suffering? Who knows, this money can help fix the potholes on Speke road.’

Measures targeting the sex sector have to consider moral, religious, health rights and criminal issues in address- ing a phenomenon that is mainly economic in nature. A major hurdle to formulation of effective policy is that policy makers have shied away from directly dealing with commercial sex work as an economic sector (ILO report, August 1998).

Some commercial sex workers freely choose sex work, others are pressured by poverty and dire economic circumstances. Some commercial sex workers’ incomes and working conditions are very good. For adults who freely choose sex work, the policy concerns should focus on improving their working conditions and social

5 A ‘special hire vehicle’ is what is known as a taxi.

45 protection so as to ensure that they are entitled to the same labour rights and benefits as other workers. For those who have been subjected to force, deception or violence, they should be rescued, rehabilitated and reintegrated into society.

Entirely separate measures need to be envisaged for adult commercial sex workers versus children who are invariably victims of prostitution. Whereas adults could choose sex work as an occupation, international con- ventions all treat children prostitutes as an unacceptable form of forced labour; the goal is its total elimination. Success in eliminating child commercial sex workers would also reduce the problem of adult commercial sex workers, since some adult sex workers report having entered the business while they were still under age (ILO report, 19 August 1998).

Decriminalization

Those against decriminalization argue that ‘commercial sex work’ is not a ‘profession’ and to decriminalize commercial sex work will not put an end to the ‘stigmatization’ or violence against commercial sex workers. That complete decriminalization of commercial sex work would imply decriminalizing the activities of the customers, commercial sex workers, pimps and traffickers. In countries which made this choice, the pimps recycled into respectable businessmen and became wealthy in full legality, at the expense of commercial sex workers whom they exploited to the hilt. The search for profits requires the recruitment of an increasingly young and numerous labour base, to answer the insatiable needs of ‘customers’. This leads to trafficking in women for the purpose of prostitution, linking inseparably the fate of the local women in commercial sex work to that of their ‘imported’ colleagues.

Furthermore, commercial sex work has been indicated as a form of violence, exploitation and alienation. It undermines the dignity of the individual. It results mainly from sexual oppression and socio-economic dispari- ties, which strike first at women and children. It seems to use absurd and irresponsible arguments to seek the decriminalization of a system which crushes thousands of human lives, under the pretext that current laws do not bring forth the elimination of commercial sex work (Elaine, 2004).

Supporting decriminalization emphasizes that solicitation for the purpose of commercial sex work should not be legalized. (Legalization is defined as the legal recognition of commercial sex work by full government control). One Canadian lawyer stated:

‘ I would like to see women being able to work out of their own homes. That would be the ideal situation, both for safety and for dignity. But I don’t want to see commercial sex workers legalized.’

In her view in every jurisdiction where commercial sex work has been legalized, ‘control has been taken away from the women and they experience oppressive working conditions’ (Derrick, 1988). The English collective of commercial sex workers also oppose legalization ‘on the grounds that commercial sex workers should be al- lowed to advertise and get in touch with clients legally, without interference and pimping by the state (US prostitutes collective, 1988). According to Overs ‘unconditional removal of all relevant criminal law and the introduction of regulations based on accurate understanding and analysis is required’, not partial legalization whose ‘intended consequence is to provide a pool of infection free women’ (Overs, 1988). As discussed before, commercial sex workers in Kampala district were managing their own business without pimps, therefore decriminalizing commercial sex work can be viable alternative as discussed below.

While total decriminalization of commercial sex work was not favoured by those interviewed, according to the figures in table 7, my point of departure in this study is that decriminalizing commercial sex work will recog- nize that not all women in the commercial sex industry are victims and that the mere purchase of a sexual service from a commercial sex worker who is voluntarily selling her sexual services is not a human rights violation in itself. Therefore, the goal of decriminalization is two fold: first to empower women through the elimination of abusive laws and second to punish persons who abuse victims, such as ‘commercialized rape

46 victims’.6 Decriminalization will accomplish both goals. Although many people have difficulty envisioning a world in which sex work is considered legitimate work, once the discussions and analysis move from questions of morality towards an examination of the human rights of women, it becomes apparent that decriminalization must be given serious consideration as a viable and legitimate alternative.

If one starts from the fundamental principle that certain basic human rights are universal, then it follows that commercial sex workers have the same human rights as everyone else, no more and certainly no less. Human rights instruments recognize the ‘right to work, which includes the right of everyone to the opportunity to attain his or her living by work which she or he freely chooses or accepts’ and which is an ‘inalienable right of all human beings’ (the International Convention on Civil and Political Rights article 6 and CEDAW article 11(1)a). However, commercial sex workers are denied full realization of this right, both by international laws and na- tional laws. Why? Are commercial sex workers considered less than human to justify recognition of fewer rights or can rights be selectively recognized, based upon the perceived morality of the work involved? A yes will require a distinct mutation of the universality principle into a selectivity principle and transformation of the rights into mere privileges handled out by the states. The answer must be an emphatic ‘no’ if the universality principle and the inalienability of fundamental rights have meaning.

If one accepts the premise that not all women in the commercial sex industry are victims of violence, force, or non-economic coercion then it follows that not all women in the commercial sex industry need to be or want to be rescued (Ann, 2000). A woman respondent said:

‘I used to work and the money I was getting was not enough for me. Since I started this business I have managed to look after myself and my parents including paying school fees for my siblings. My request is that the government should leave us to continue in our business because according to me there is no any other work that is better than this, that can sustain me.’

Decriminalization respects the right of adult women to choose away to make a living. It does not treat commer- cial sex workers or brothel owners or anyone else ‘living off the earnings of commercial sex workers’ as criminals unless they use violence, for example assault. It empowers women by permitting commercial sex workers to control the conditions of their labour. Under the decriminalization alternative, commercial sex workers like other workers would be able to hire agents and work for others or themselves in the same manner as any other worker. They would be able to form trade unions and organize their own businesses. Brothels would be taxable associations and commercial sex workers would also pay taxes (Ann, 2000).

Labour occupation, health and safety laws, and other laws would be enforced in brothels and the government would issue business licences in an impartial and non-discriminatory manner. The commercial sex industry would be treated as a business and be subjected to, and protected by the same type of rules and regulations that apply to other businesses.

Conclusion

In conclusion, therefore, prohibiting commercial sex work is a violation of human rights. The issue of prohibi- tion involves people’s fundamental right to control their own bodies and decide the best way to live their lives. If no one is being abused, either mentally or physically, then the government shouldn’t prohibit charging fees for services that they are at liberty to give away. No person’s human or civil rights should be violated on the basis of their trade, occupation, work or profession. Workers in the sex industry deserve the same right as workers in other trades, including the right to legal protection from crimes such as sexual harassment, sexual abuse and rape.

6 ‘Commercialized rape victims’ includes women who are involuntarily trafficked, forced or non-economically coerced into the commercial sex industry and all children, whether or not they purportedly ‘consent’ to entering the sex industry.

47 Even though during the study evidence of trafficking women for purposes of commercial sex work was not established, trafficking is evidently a complex issue, related to different fields and interests: migration, organ- ized crime, commercial sex work, human rights, violence against women, the feminization of poverty, the gender division of the international labour market, unequal international economic relations. Solutions vary, depending on how the problem is defined. If the problem is viewed as a human rights or labour problem, then logically different solutions will be drafted from those drafted if trafficking is viewed predominantly as a problem of organized crime or illegal migration. Precisely because trafficking in women is related to so many other areas and interests, any proposed measures must be carefully questioned as to what problem and, above all, whose interests it serves and what the impact on the women concerned will be. Does a given strategy address the problem of the women concerned or rather the problems of the state? Will it help to prevent and combat abuse and violence or does it in fact target another problem? Will it improve conditions for the women involved or will it make their situation worse? Initiatives must not compound discrimination against female migrants or further endanger the precariously held rights of individuals working in the commercial sex indus- try.

Sex workers face discrimination in almost every aspect of their lives and rarely enjoy full rights as citizens. The nature of discrimination can be understood in terms of existing human rights standards. In order to bring sex workers under the protection of UDHR article 2, the International Convention on Civil and Political Rights article 2, International Convention on Economic, Social and Cultural Rights article 2.2, which prohibits dis- crimination on the grounds of social origin, property, birth or other status, it seems reasonable to argue that they are discriminated against on the basis of their special ‘status’ as sex workers. While it is undeniably clear that much discrimination against sex workers derives from their membership of a stigmatized group, there are dangers inherent in this approach.

Identifying female commercial sex workers as a characteristic or status and not as an activity, can itself be considered an act of direct sex discrimination, thereby also violating the International Convention on Civil and Political Rights, article 3 and the International Convention on Economic, Social and Cultural Rights, article 3, on the equality of the sexes. This identification defines a woman’s status primarily in terms of her sexual behaviour.

The acceptance of multiple sexual partners is widely considered to be transgressive in women, but is not always judged harshly in men. The Convention on the Elimination of all forms of Discrimination against Women, article 5, obliges states to take measures against prejudices and stereotypes based on gender. The definition of the sex workers economic activity as a characteristic, and the stigma which attends that characteristic, reflect prejudice and stereotypes around female sexual roles and states should be encouraged to take appropriate meas- ures under this article.

Notwithstanding the discussion above, discrimination against sex workers can often be described in terms of indirect sex discrimination because the industry is predominantly female and so women are disproportionately affected. The International Convention on Civil and Political Rights, article 3, and the International Convention on Economic, Social and Cultural Rights, article 3, guarantee equal treatment of men and women, and CEDAW, article 2, requires states parties to eliminate discrimination against women by, inter alia, taking all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. The International Convention on Civil and Political Rights, article 2.1, and the International Convention on Economic, Social and Cultural Rights, article 2.2, require states par- ties to ensure rights without discrimination in their territory and jurisdiction; the International Convention on Civil and Political Rights, article 2.1, demands incorporation of its terms into state legislation.

Government should abolish or amend the laws on prostitution in Uganda because they are discrimi- natory in nature and do not conform to the international instruments and covenants to which it is a party.

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Betty Kyokunzire RO52753A

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