MP David Gikaria attracted attention for his Bill published early this month. Headlines said things like “Moves Bill to Parliament Seeking Legalisation of Sex Work”.
THE Law
His Bill would actually do away with five offences in Section 182 of the Penal Code – all ways of being “an idle or disorderly person".
These provisions have a very long history in English law. Over the centuries, land that had been used by ordinary people was, we would say now, grabbed.
Having large numbers of people unemployed, begging, and perhaps robbing (often assumed to be robbing) was undesirable from the perspective of the rulers. They should be working. And eventually working in factories — contributing to the national prosperity and not getting up to mischief.
The law was exported to the colonies and was particularly appropriate to a country like Kenya where people had been driven off their land, and where the government demanded they pay taxes — to do which they had to work.
The first Section 182 offence is being a prostitute behaving in a disorderly or indecent manner in a public place. The second pushing others to beg, the third behaving in a manner likely to cause a breach of the peace, the fourth doing any indecent act in public, and the last publicly “soliciting for an immoral purpose”.
It is not, by the way, apparently a crime to beg. There used to be two more crimes in Section 182 — playing a game of chance for money in public, and begging by showing wounds or “deformity”. These were removed in 1968.
But the next year the Vagrancy Act was passed. This was based on old English law, and gave the police power to arrest beggars, the homeless and those with no apparent means of support.
The idea was that they should be taken off the streets, and could be detained and ideally trained. Or sent to their home areas and required to stay there. This Act was removed in 1997.
Kenyan law is thus not as bad as in some countries, nor as it used to be. But Gikaria says that these laws are used to threaten the poor and harass them. Research in other countries has shown the same thing.
THE RIGHT APPROACH?
I would suggest that doing away with this section of the Penal Code is a clumsy solution. To abolish the offence of being disorderly as a prostitute seems a good idea.
But is it necessarily a bad thing to be able to control soliciting by prostitutes? Should people have to abide prostitutes calling to them in the street?
Actually being a prostitute is not a crime — it is not criminalised (rightly, in my view). However, Kenya is rather like Canada where law has “the dubious distinction of making it legal to ‘be’ a prostitute but next to impossible to actually engage in prostitution — a related activity”. Living on someone else’s earnings as a prostitute is a crime. Making a child a prostitute is a crime under the Sexual Offences Act.
Is it necessarily wrong that it is a crime to get someone else to beg? (It is a separate offence to get a person with disability to beg, or a child, but are these the only categories of vulnerable people?)
Is it necessarily a good idea to do away with the crime of indecent behaviour? Suppose a man exposes himself to people in the street?
I suggest that we need serious consideration of each of the provisions and decide whether any should be kept, and if so what changes should be made in them.
COUNTY BY-LAWS
Then there are county by-laws. The Consortium for Street Children says, “Nairobi County has by-laws penalising making any kind of noise on the streets and idle-sitting other than in recreational places.
"Mombasa’s General Nuisance By-law makes loitering in a street or public place for the purposes of prostitution an offence. (I have not been able to confirm the current accuracy of these statements.)
Counties have power to control public 'nuisances' according to the Constitution. 'Nuisance' is a vague expression. The Public Health Act uses it to refer to pollution, and dirty, unhealthy or dangerous conditions — no mention of prostitution or idling.
The Penal Code refers also to inconveniencing the public. It is true that in countries of the English tradition, the acts of prostitutes — like soliciting — are treated as nuisance in law. The quotation earlier about Canada is from an article called 'Prostitution as Public Nuisance'.
THE CONSTITUTION
Some of these by-laws are arguably unconstitutional. Is it right to include 'idling' as a nuisance? A nuisance means it affects other people, but how does idle sitting affect others? If it does not, counties do not have the power to pass by-laws or Acts about it.
In fact, several of them ought to be held unconstitutional for other reasons. To make it an offence for a prostitute but not others to behave in a disorderly way is discriminatory and breaches Article 27.
Some offences can be attacked for violating the dignity of citizens, others for treating minor acts too seriously — thus violating the right not to be treated in an inhumane or degrading way. Some make it punishable to do nothing.
Several offences are too vague — what is 'disorderly' or 'indecency'? Article 24 of the Constitution says that to limit a right the limitation must be in a law, and courts have sometimes held laws too vague to be 'law'.
Why should it be unlawful to do something not otherwise against the law because someone else may be provoked into behaving unlawfully? If the behaviour objected to takes the form of speech, it may well be protected by the right to freedom of expression.
An English judge once said, “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence.”
In fact another Section (94) of the Penal Code creates an offence of breach of the peace that is more detailed.
IT SHOULD NOT BE A CRIME TO BE POOR
Offences of this sort are most used against the poor, especially against street families. The penalties are often small; under Section 182 it is up to one month’s imprisonment or a fine of up to Sh100 — for a first offence. The main issue is often that of being arrested and then being effectively forced to pay a bribe.
On idling, Justice Nyakundi put it well: “I do not know how one can criminalise idleness. Gone are the days when the marginalised members of our society were bundled into police cells under this rubric of offences, incapable of constituting any criminal elements.
"One wonders the sustainability of the offence of being idle and disorderly in our statute books, save for the reason of being a fertile provision for the police to use it as a tool to infringe and or violate the right to equality and non-discrimination under Article 27 of the Constitution. Undoubtedly, none of the middle income or economically advantaged class of our society finds himself or herself being arrested or indicted with these kind of offences.”
THE WAY AHEAD
The African Commission on Human and Peoples’ Rights has adopted a set of principles on decriminalisation of petty offences. These are minor offences but their enforcement has “adverse socio-economic impact …, such as the imposition of fines on persons without means to pay.
"[Also], prolonged or arbitrary pre-trial detention, harassment by law enforcement officials, the economic and social cost to the families of people in detention, adverse health consequences from conditions of detention, and potential criminal records, which further entrench the marginalisation and burden of people living in poverty.”
We have fewer of these than some countries. But it is time we took the issues seriously. We need a Constitution-based audit of all our criminal laws and county laws that create crimes, rather than piecemeal amendments to laws, or challenges in court. A suitable task for the Law Reform Commission maybe.
(Edited by V. Graham)
