Q: The Government of Kenya is implementing provisions of the 2010 Constitution regarding the

culture, morality and human rights. As a renowned expert on these legal issues, the Attorney
General has appointed you lead counsel in drafting a position paper on legality of
prostitution in Kenya. You are required to address the moral and legal questions. Draft a
position paper in the form of an essay, using the support of constitutional, legislative, and policy
provisions, as well as decided case law to provide your advice to the Government on whether
prostitution should be legalized or not.

Table of Contents
Introduction.................................................................................................................................................2
I. Definitions...........................................................................................................................................2
II. Prostitution and Morality.....................................................................................................................2
The History of prostitution..........................................................................................................................3
Legalization of Prostitution.........................................................................................................................4
a) The law in Kenya.................................................................................................................................4
b) International opinion on Prostitution...................................................................................................5
c) Why prostitution should be legalized in Kenya...................................................................................7
d) Economic and Social Benefits of Prostitution....................................................................................10
i. Economic benefits.........................................................................................................................10
ii. Social Benefits...............................................................................................................................11
Conclusion.................................................................................................................................................13

Introduction
 I. Definitions

Prostitution can be defined as the practice of engaging in sexual activity with someone for

payment either in form of money or other kinds of favors.

A prostitute can be termed as a person, either man or woman, who openly abandons her body to

many men, without choice, for money.1

II. Prostitution and Morality

According to the Christian Apologetics & Research Ministry (CARM), morality is the distinction

between right and wrong. It is the determination of what should be done and what should not be

done.

Prostitution in Kenya has for a long time been considered morally wrong but the law has neither

made a concrete stand for or against prostitution. This in the end has brought about the debate on

whether prostitution should be legalized or not. It has always been a huge hurdle for law makers

in Kenya to make a distinction between the law and morality hence the stalemate between the

government and commercial sex workers on the legality of their trade. This distinction could be

made through the argument that law can be addressed to external freedom while morality is to

internal freedom.2 This notion is supported by the explanation that law addresses the relations

between individuals in the society while on the other hand morality deals sorely on the struggle

within every individual between reason and desire.3

1
British writer and author, Havelock Ellis.
2
Basic Concepts of Legal Thought by George P. Fletcher, 1996 (Morality in the Law)
3
18th century writings of Immanuel Kant.
This debate can be therefore attributed to these differences because on one hand some may term

the act of prostitution as being immoral by virtue of their beliefs while others on the other hand

would see it as any other kind of occupation.

In Kenya under the newly promulgated constitution, each and every citizen has the right to have

their dignity respected and protected4- including commercial sex workers.

The History of prostitution

Prostitution is commonly spoken of as the oldest profession in the world. Earliest human records,

about 4000B.C, make reference to prostitution.5 Arnold’s article explains that there is still no

evidence that the elemental sex instinct has been altered in the slightest degree by all the

centuries of culture and education. Plato, a classical Greek philosopher, actually referred to this

as, “the ever-raging animal in man.”

During the age of temple prostitution, priestesses in the Babylonian temples acted as prostitutes

and worshippers expected great benefits from engaging in sexual intercourse with a holy person.6

And in this whole period of temple prostitution, the priestesses were treated with great dignity.

These benefits were not necessarily physical in nature as earlier mentioned in the definition of

prostitution. They could have been in form of transfer of blessings to the worshippers. This to

some extent could be used to emphasize the sanctity of the trade in some societies although in

the same way as years have passed so has the concept of prostitution.

Great men and women from Biblical times also engaged in prostitution (harlotry). Judah, the

fourth son of Jacob, saw Tamar, his daughter-in-law, and thought her to be a harlot for her face

4
The Constitution of Kenya 2010 Chapter 4, article 28.
5
Special article on History of Prostitution by F. Arnold Clarkson.
6
Special article on History of Prostitution by F. Arnold Clarkson.
was covered. He went over to her and said, “Come, let me come in to you”. The Bible explains

that he did not know that she was his daughter-in-law for she had her face covered. Tamar then

asked him what he would give her in return and Judah answered, “I will send you a kid (a young

goat) from the flock. This story can be further explained in the book of Genesis chapter 38.

After this act of prostitution from Judah, one in modern times would have expected there to be

severe consequences especially from God, but most ironically Judah was blessed by his father

before his death (Genesis 49:8-12).

Legalization of Prostitution.

a) The law in Kenya.

In Kenya there are no laws that legalize prostitution nor are there such that criminalize it. The

Penal Code speaks on the issue where it states that, “Every woman who knowingly lives wholly

or in part on the earnings of prostitution, or who is proved to have, for the purpose of gain,

exercised control, direction or influence over the movements of a prostitute in such a manner as

to show that she is aiding, abetting or compelling her prostitution with any person, or generally,

is guilty of a felony7.” This same law also applies to men as explained in article 154 of the Penal

Code. As clearly shown in the above statements, the law does not expressly forbid the act of

prostitution but only the act of living off the earnings of this trade.

It is also a provision in the Bill of Rights that “Every person is equal before the law and has

the right to equal protection and equal benefit of the law. Equality includes the full and equal

enjoyment of all rights and fundamental freedoms.”8 It is therefore in each person the

7
Penal Code Cap63 article 154.
8
The new Constitution of Kenya 2010 articles (1)(2).
responsibility to adhere to these laws even if their moral or religious or customs opinions may be

contradictory.

Under the Sexual Offences Act of Kenya laws on prostitution state that: Any person who—

(a) Intentionally causes or incites another person to become a prostitute; and

(b) Intentionally controls any of the activities of another person relating to that person’s

prostitution,

and does so for or in expectation of gain for him or herself or a third person, is guilty of an

offence.9 This legislation once again helps to show the neutrality of the government on the whole

matter of prostitution. These loopholes in the law can therefore be used to advocate for

legalization of prostitution.

b) International opinion on Prostitution.

The United Nations Organization has made calls for decriminalization and being rid of

“punitive” laws against prostitution worldwide. In 2010, the UN secretary general Ban Ki Moon

convened the Global Commission on HIV and the Law. This commission was set to repeal all

laws that prohibit adult consensual sex wok as well as setting a distinction between sexual

trafficking and prostitution. The commission made a report titled “HIV and the Law: Risks,

Rights & Health” which recommended sex work to be recognized as an occupation in order to be

regulated.10 They argued that criminalizing this act hindered the fight against HIV/AIDS. In his

support of this in 2009, Ban Ki-Moon stated that, successful AIDS responses did not punish

people but protected them. He called to ensure that AIDS responses were based on evidence, not

ideology, and reached those most in need and most affected.11 The UN-backed commission made

9
Sexual Offence Act no3 of 2006 article 17.
10
Cnsnews.com/news/article/un-commission-calls-legalizing-prostitution-worldwide
11
CNSnews reports.
its conclusions based on interviews with prostitutes, activists and public health advocates in 140

countries across the world.

Many nations across the world have made prostitution legal and have formed various statutory

laws which are aimed at regulating it as any other occupation would be. In the USA a few states

have legalized prostitution e.g. Nevada, which has laws on ownership of brothels in over 8

counties in the state. The law says that licensed prostitutes must be at least 21 years of age except

in some counties where the minimum age is 18. The brothels and employees must register with

county sheriffs and receive regular medical checkups. Licensed prostitutes must undertake

weekly tests for gonorrhea and monthly tests for HIV and syphilis. Their law also states that it is

mandatory to use condoms for all oral sex and intercourse. Owners of brothels are held liable if a

client contracts HIV from a prostitute who has tested positive for the virus.12

It is possible in view of the above references to preempt that if laws are put in place to regulate

prostitution in a country then there would be no need to base our judgments only on the basis of

personal feelings but on logic.

A legal theory can be used to shed more light on the issue where Immanuel Kant, in his Kantian

Challenge, came up with the idea of divine perfection being purity of reason, exercised without

distraction by bodily impulses.13

c) Why prostitution should be legalized in Kenya.

Prostitutes in Kenya have their own opinion about what they do. During a news interview on

the 28th day of March 2012, one prostitute noted that sex work is not illegal but it is a crime.
12
Prostitution laws in Nevada.
13
Basic Concepts of Legal Thought by George P. Fletcher – Impartial Moral Theories (p.152)
She explained this in reference to the Penal Code article which states that it is a felony for

one to live off wholly or in part on the earnings of prostitution. She challenged the protests

against legalizing prostitution by saying that if two consenting adults of legal age exchange

sex for gifts or money then there wouldn’t be anything wrong with that.

Prostitution can be effectively described as a victimless crime in that prostitutes are not

committing any crimes i.e. no one is hurt by it since there are two consenting adults involved.

In a case where a prostitute is forced to do something that he/she is not willing by a client,

then that would be construed as rape or sexual assault whose penalties are prescribed under

the Sexual Offences Act No.3 of 2006.

The legislature could also do well to make legislations that favor prostitution since the sex

workers would be able to operate in a safer environment and not live in fear of getting

arrested and charged. This would enhance their security as provided for in article 29(f) which

states that, “Every person has the right to freedom and security of the person, which includes

the right not to be treated or punished in a cruel, inhuman or degrading manner.” This could

be in form of client violence and even police brutality.

If appropriate statutory laws were provided for the act of prostitution, then there would be a

gradual change in how the whole institution is perceived country wide and therefore sex

workers would access services which they would have otherwise avoided due to the

following factors:

a. Stigmatization and marginalization by health providers which create barriers for sex

workers to access health and social services.

b. Inability to negotiate safer sexual practices (use of condoms).

Such responses would be in adherence to the law that allows for every person’s right to the

highest attainable standard of health, which includes the right to health care services.15

In reference to the Section 153 of the Penal Code, living off the avails of prostitution is a felony.

The Canadian Criminal Code reflects that: Everyone who lives wholly or in part on the avails of

prostitution of another person is guilty of an indictable offence and liable to imprisonment for a

term not exceeding ten years.16

This is further interpreted to mean that it targets the pimps whose main source of income comes

from prostitution. This offence is not applied to prostitutes as the main offender but to those who

make money off of the prostitution of others.

People may want to argue out the whole issue of prostitution on the basis of natural law theories,

but one needs to be come out blatantly and say that prohibition of prostitution would just not

work. This is because banning it would not stop people from wanting sex and as is evident in

many societies; most people are willing to pay for it. These factors point to the fact that

prostitution will always happen whether it is made illegal or otherwise.

A perfect example to show the intensity of this could be portrayed during the 2010 soccer world

cup in South Africa where according to one international news organization, about 40,000

14
Standards for Peer-Education and Outreach for Sex Workers (Sep.2010) – Ministry of Public Health and
Sanitation.
15
The Bill of Rights chapter 4, article 43(1a)
16
Criminal Code of Canada section 212(1j)
prostitutes came into the country17 to provide their services to the thousands of tourists who flew

in for the event.

It would therefore be more logical to legalize prostitution and make provisions that would

regulate it for everyone’s benefit. As a result people would feel obliged to respect and treat

prostitutes as they would others. Legal positivists could claim that just because something is the

law does not make it right, but they do not deny that there may be a moral obligation to obey the

law. Hence if these laws were implemented then there would be a safer and more suitable

environment for sex workers to conduct their business.

Many people choose to criminalize and demonize prostitution because their focus is held mainly

on the negative facts that have surrounded it for many generations. It is wise to keep an open

mind while discussing this sensitive matter so as not to make suggestions based only on human

impulse but reasonable arguments.

Prostitution can be conducted in many forms and places that include;

- Street prostitution,

- In massage parlours where sexual services are provided for an additional tip,

- Inside actual brothels,

- Out-call prostitutes; this is where a customer calls an agency and the act takes place at

his/her residence, and,

- There are private sex workers who are called by clients and conduct the business in their

own premises.

17
Christian Science Monitor, May 12, 2012.
Many would be surprised at how beneficial prostitution can be both socially and even

economically in the society if only they stopped to critically think and analyze both sides of the

coin.

d) Economic and Social Benefits of Prostitution.

i. Economic benefits.

Prostitution like any other occupation is income generating. If sufficient measures were taken

and legislation passed to legalize prostitution as a government taxed trade, then there would be

great amounts of revenue received every year from this business which would in turn lead to a

boost in the country’s economy.

Prostitution is not just about exchange of sexual favors but also involves financial exchange. It

combines both sex and the free market18 out of which neither is illegal.

ii. Social Benefits.

These benefits are those that would impact on the individuals themselves or on their families and

communities at large.

18
Wendy McElroy, ‘Solutions to Prostitution’ on Ifeminist.com.
Kirby C. Cundiff, Ph.D., an Associate Professor of Finance at Northeastern State University

states that if prostitution was legalized in the United States then estimations are that the rape rate

would decrease by around 25% which meant a decrease of approximately 25,000 rapes in a

year.19 This reasoning further explains the rationale that the rate of rape crimes would be lowered

if prostitution was readily available. This would only be possible if prostitution was legalized.

People who think differently may argue that prostitution leads to more rape and sexual violence

against women but it should be noted once again that a prostitute is not forced into the trade but

does it willingly. If any sort of rape occurs during that period, then there would be laws to deal

with that under the Penal Code.

This takes us back to the earlier comment that prostitutes would feel more secure if there were

laws to protect them against these various dangers in the course of their work.

Another benefit especially in Kenya would be that prostitution would be able to decrease the

rampant incidences of abnormal sexual behaviors that have been experienced all around the

country in the past few months. That is bestiality and in other cases masturbation. If there was

legalization of prostitution then none would be tempted to perform any bestial acts as that would

amount to cruelty against animals which is punishable under the Prevention of Cruelty to

Animals Act Cap. 360 of Kenya.

Another important factor required in determining whether prostitution is ideal in society is its

impact on the prostitutes themselves and their close relations. There can be many reasons why

someone would choose to be a sex worker. It could be in order to provide basic sustenance for

his/her family (children), which in fact is very noble and selfless. It could also be due to lack of

19
Kirby C. Cundiff, ‘Prostitution and Sex Crimes’.
education to enable them find alternative employment or, in the most direct and basic sense, the

need for “quick cash”.

In each of these cases, the sex worker has the reasons to be involved in the trade and it is no

one’s right to judge their decisions and demonize them for it as long as they are not breaking any

laws.

Conclusion

As is clearly adduced by evidence and facts provided in the above statements, it is easy to make

the conclusion that Kenya needs to legalize the trade of sex for money since it is brings more

good than harm to the citizens. Indeed the deductions make are sufficient to convince one that

prostitution has been with us since time immemorial and it is not about to leave so we just need

to learn how to survive with it without necessarily having to cause any harm or distress to our

fellow man.

Legislation must be made sooner rather than later in support of prostitution for Kenyans to

enable sex workers enjoy their freedoms and rights like all other citizens.