ZLHR wins landmark ruling on persecution of vulnerable women charged with soliciting for prostitution
The Constitutional Court on Wednesday 27 May 2015 halted and outlawed the prosecution of nine women who were arrested last year and charged with soliciting for the purposes of prostitution in a major landmark ruling for women who are considered vulnerable in the Zimbabwean society.
The nine women who were represented by Advocate Tawanda Zhuwarara and David Hofisi of Zimbabwe Lawyers for Human Rights (ZLHR) were arrested on 17 March 2014 in Harare’s Avenues residential area under a Zimbabwe Republic Police dragnet operation code-named Operation No To Robberies And Prostitution targeting women who dare venture out after dusk and charged with contravening Section 81 (2) of the Criminal Law (Codification and Reform) Act (Chapter 9:23), which criminalises soliciting for the purposes of prostitution.
The nine women, Chipo Nyamanhindi, Chipo Mwedziwendira, Lorraine Marapira, Beuty Kaseke, Tionesei Nyaude, Dorcas Linda, Selina Shoko, Memory Muchena and Colleter Chisedzi aged between 21 years and 38 years took their matter to the Constitutional Court seeking a determination of the violation of their fundamental rights to liberty as provided for in Section 49 of the constitution and their right to the protection of the law as guaranteed in Section 56 of the Constitution.
The women argued that their rights had been violated as a result of their arbitrary arrest, detention and prosecution.
In the application, which was filed last year by their legal representatives from ZLHR and heard by the Full Bench of the Constitutional Court, the nine women argued that the facts alleged did not disclose an offence and justify a reasonable suspicion that they had committed the crime since standing in the street as alleged by the State prosecutors during their remand proceedings in the Harare Magistrates Court is not an essential element of the offence set out in Section 81 of the Criminal Law (Codification and Reform) Act (Chapter 9:23).
The women also argued that the conduct of the ZRP officers who indiscriminately arrested them violated their freedom of movement and had the resultant effect of placing an overt limitation on the rights of women in that they could not freely move around the Avenues residential area without the risk of being arrested.
In addition, the women also argued that the State failed to allege material facts that the women had approached particular individuals in a public place and by conduct or words communicated that they were offering sex or sexual services in exchange for money.
In a consent order issued by Deputy Chief Justice Luke Malaba, the Constitutional Court declared that the prosecution and remand of the applicants (the nine women) on allegations of having solicited as defined in Section 81 (2) of the Criminal Law (Codification and Reform) Act (Chapter 9:23) on 17 March 2014 amount to deprivation of their liberty in contravention of Section 49 (1) (b) of the Constitution and are a denial of the fundamental right of the applicants (the nine women) to the protection of the law guaranteed under Section 56 (1) of the Constitution of Zimbabwe. Resultantly, the Chief Justice then ordered that the criminal prosecution against the applicants (the nine women) be stayed permanently.
The landmark ruling by the Constitutional Court is likely to be welcomed as a major reprieve by gender equality and human rights groups that for years have been seething with anger at the gender discrimination associated with the ZRP’s operations and help bring to an end the notorious police practice of indiscriminately rounding up women under the guise of clamping down on prostitution.
ZLHR took up the matter under its Access to Justice campaign in a bid to stop such discriminatory actions by the ZRP. To download the press release, click here.
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