The Constitution, enforced and guarded by the Constitutional Court and various Chapter Nine institutions, is world leading, and over time the reality on the ground seems to be improving.
Yet there is one area where South Africa’s human rights record leads Africa for all the wrong reasons. One group of people is excluded from all these protections because of action and inaction by the government and Parliament.
The relentless police brutality and health services stigma meted out to South Africa’s 200 000-plus sex workers – most of whom are black women on low incomes – is exacerbated by political indifference, and leads the African continent in its scale and impact.
The results are measured in high HIV rates, in low take-up of health services and in poor relationships with the police.
All this is known – it has been researched and highlighted through lobbying, and repeatedly pushed aside. Our democracy has comprehensively failed this most marginalised of groups at every turn. Just take a look at three key areas – Parliament, the law reform process and HIV services.
Assuming that Parliament would be interested in such abuse on its doorstep, two prominent organisations serving and representing sex workers in SA – Sweat, working on rights and providing health and advocacy services, and Sisonke, representing sex workers themselves – wrote to all 462 members of Parliament (National Assembly and National Council of Provinces) on December 9, 2011, giving detailed examples of police and health service abuse of sex workers’ rights, and even providing an easy response sheet. By the end of February 2012, just 10 responses had been received.
Back in May 1996, the SA law reform commission started a project examining the law relating to sexual offences, including “adult prostitution”. The parliamentary justice portfolio committee wanted it to come back with proposals for change.
An unbelievable 16 years and many thousands of human rights breaches later, the commission has still not reported.
And nearly three years after it conducted a public consultation which attracted many submissions, those who responded are still waiting for clarity on where the process is going next, and the commission has refused to release copies of the submissions it received.
About one in five new HIV infections in SA is related to sex workers, their clients and families; and HIV rates among sex workers are about four times the national adult average.
Back in 2007, the government agreed a national strategic plan on HIV/Aids, which included commitments to set up specialist health services for sex workers, and to move on the decriminalisation of sex work. Five years later, no progress has been made.
So what’s the relevance of all this to the average South African?
First, the neglect of the issue creates extreme moral discomfort. We live in a country defined by people’s rights, moulded by conflicts around those rights. When the law labels as criminals a group of adults who do no more than choose to enter into private, temporary, generally financial, arrangements with other adults, and are treated by the police as subhuman, all of us should surely be disturbed at the hypocrisy and inhumanity involved.
If we aren’t, maybe we should examine why we aren’t. However immoral one may regard sex work, surely long and painful lessons have been learnt in this country about doomed attempts to write the moral view of some into legislation applying to all.
Secondly, the current situation encourages police corruption, and soaks up scarce resources better used elsewhere. The mix of police discretion over what action they take against sex workers and their clients and of an activity which operates in the shadows of our society is a toxic one.
The outcome is a wide and deep range of abusive police behaviour towards sex workers, including verbal abuse, demanding and taking bribes, and much worse.
In a 2009 survey, 12 percent of Cape Town sex workers reported being raped by police. Decriminalisation transforms the police-sex worker relationship from being fraught and police-dominated to being necessarily complex and diverse, with a number of agencies being involved – as they are with the rest of the population.
Thirdly, criminalisation undermines our urgent national mission to combat HIV.
By feeding stigmatised behaviour by health workers, and by forcing sex work into the shadows, criminalisation makes it virtually impossible for sex workers to access condoms and health services without fear of stigma.
Just when sex workers should be the safer-sex ambassadors in an HIV-aware world – more willing than the general population to exercise safer sex – they are instead rendered highly vulnerable to the virus.
Fourthly, the concern for everyone is the way in which our democratic institutions have turned a collective cold shoulder on this significant issue. There are proven, win-win options available, notably decriminalisation of sex work, as in New Zealand and in the Australian state of New South Wales.
Instead, our elected leaders seem to be hung up on religious opposition and political conservatism (interests which opposed every other progressive reform throughout the past 18 years), on looking at the detail without realising that it is the legal status of sex work which is at the heart of the matter, and on tossing the issue into a confusing cocktail of agencies and processes.
Nowhere is Saturday’s message – the message of International Sex Workers’ Rights Day – more relevant than right here, right now.