Running Head: SHOULD PROSTITUTION BE LEGALIZED IN KENYA?

Should Prostitution be Legalized in Kenya?

Student’s name

Institution
SHOULD PROSTITUTION BE LEGALIZED IN KENYA? 2

Abstract

For many years, the general public has been oblivious to the difficult life prostitutes go
through every day as a result of their work being considered unlawful. From exploitation by the
clients they serve to harassment by the security forces to even stigmatization by the public since
they are considered immoral. The world of commercial sex is very ruthless and therefore living
through it takes a lot of determination. Although the moral background of the Kenyan people
abhors such activities, it is high time the society compromised its standing on prostitution.
Therefore the moral and legal positions on this matter should be in the best interests of the
prostitutes, who are fellow Kenyan citizens.
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Introduction

Prostitution can be defined as the practice of engaging in sexual activity in exchange of

money, favors or any other form of payment. A prostitute is an individual who engages in sexual
acts in exchange of money, favors or any other form of payment. In Kenya though, prostitution is
a very condemned profession. This is so because, the moral fabric of the Kenyan society considers
sex a sacred affair experienced within the confines of marriage, not sold in dark corners and alleys
like a commodity. Thus legalizing prostitution becomes a very difficult endeavor especially in a
country where majority of the population is religious. So should prostitution be legalized in Kenya?

Why do people engage in prostitution?

Kenya is a developing country where majority of the population live in poverty. Among
those in poverty are some who struggle to make ends meet and thus are predisposed to the negative
effects of poverty. Bearing this in mind, prostitution pops up as a means of generating income in
order to make ends meet. Others, in the commercial sex industry are there because of drug
addiction. As one is drawn deeper and deeper in to drug addiction, the sources of income to fund
it become limited. Prostitution therefore acts as a solution to their money problems and thus such
individuals find themselves hooked to this sort of work.

Unemployment is also another key driver in to this sector. As the population in the country
increases job opportunities become fewer by the day. The upcoming generation must therefore
find an alternative source of making a living if they don’t acquire employment. Due to the belief
that prostitution is well paying, it becomes a very lucrative career path vis a vis searching for a job
day in day out. Other individuals in the sector are there because they were exposed to it at a young
age and have known no other form of livelihood since. This is mainly because at a young age their
guardians take advantage of these children’s innocence and thus send them to do such odd jobs for
money.

The legality of prostitution

According to Franklin Nyagah (2017), the constitution has not categorically stated as to
whether prostitution is illegal or not which has led to the debate on its legality. He argues that the
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balance between morality and the law has troubled law makers concerning prostitution and thus
has contributed to this legal stalemate. According to James M. and Dan K. (2009), many moralists
would argue that legalizing prostitution would lead to an increase in sexual vices such as underage
prostitution and sex trafficking among others thus leading to the degradation of morals in the
society.

Spectrum International conducted a survey consisting of 1224 respondents from all

professions, age-groups, religions and areas about their views on legalizing prostitution. Majority
of the respondents who participated in the survey wanted prostitution legalized because they feel
that it is a good way of regulating the industry and also curbing the spread of HIV and AIDS.
Meshack Ndolo, an employee at Spectrum International puts it out that many of the respondents
want commercial sex legalized since it could aid in vices such as drug abuse, corruption, child
prostitution, the spread of STDs, crime and generally regulate the troubled sector. The majority
want this because they claim that the discrete nature of prostitution in the country gives rooms for
atrocities such as child prostitution to occur due to lack of oversight by authorities. They further
claim that prostitutes were involved in criminal acts against their clients. This was further
supported by majority of the sex workers who admitted to having stolen from or coordinated theft
against their clients. Also the research revealed that 43.5% of the sex workers engage in
unprotected sex which pre-disposes their clients as well themselves to contracting STDs. This
therefore, is the basis of their call for legalizing prostitution (Gibendi, 2014).

James M. and Dan K. (2009) argue that prostitution is not illegal per se. according to them
sections of the Kenyan constitution regard aiding, encouraging, compelling prostitution and also
persistently soliciting for an immoral act as illegal. The constitution does not categorically classify
engaging directly in commercial sexual activities as going contrary to the law. Franklin Nyagah
(2017) believes that the law is external freedom while morality is internal freedom which are both
enjoyed by man. Therefore prostitution can be viewed as immoral acts based on the beliefs of the
people but on the other hand it can also be seen as an occupation not an illegal endeavor. Joy Kiiru
suggests that the high moral standards of the Kenyan society is the biggest hindrance to the
legalization of prostitution in Kenya (Gibendi, 2014).

Although the law does not prohibit prostitution, the punishment is not equal for both
genders. According to article 154 of the Penal code, women found engaging in acts of prostitution
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are charged with a felony while men found doing the same are charged with a misdemeanor
(Gballinger, 2011).

Why should prostitution be legalized?

In the Kenyan Bill of Rights is the fundamental right of every Kenyan citizen to fully enjoy
the benefit and protection of the law which includes all its rights and freedoms. Therefore it would
be unfair to deny the prostitutes their rights as provided for in the constitution. If prostitution was
to be legalized, it would be a major boost to the lives of the commercial sex workers as there would
be a reduction in physical and psychological torture on them from their clients, since there would
be legal action in case of infringement of their rights (James M. and Dan K. 2009).

Through legalizing prostitution a general code of conduct would be legally put in place to
which all the prostitutes adhere to. Prostitution would be considered a profession like any other
hence the participants would require permits which would have very strict health requirements,
areas they are to operate in and maybe even their participation in trade unions. This will generally
protect and improve the quality service the consumer gets.

According to arguments put across by Njoroge Kinuthia (2016), in countries where

prostitution is legal such as the Netherlands, it is treated like any other business. The government
therefore provides the sex workers with security, treatment and sensitization on disease prevention
among other services since it is their right. He further adds that making it legal to practice
prostitution is only a matter of accommodating it in the constitution since it is an open secret to
the Kenyan people that it occurs countrywide.

The Kenyan commercial sex industry employs over 500,000 people either directly or
indirectly (James M. and Dan K. 2009). Spectrum International estimates the daily earnings of this
sector at 300 million shillings. This is about 110 billion shillings generated annually which could
be taxed thereby increasing the government’s revenue (Gibendi, 2014). The money generated from
this sector could be used to fund the fight against HIV and AIDS. It could also lead to the
empowerment of the sex workers to demand safer sexual conditions from their clients.

The United Nations Organization has pushed for the legalization of prostitution worldwide
since it is of the view that for appropriate regulation to be carried out in the sector, it needed
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recognition as a profession. This will give way for benefits such as licensing, disease prevention
programs among others for the sex workers (Franklin Nyagah, 2017).
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Conclusion

Prostitution in Kenya is a very delicate subject matter bearing in mind the moral
background of the people. Whether it is legalized or not commercial sex work will continue to
thrive as long as there is a willing buyer and a willing seller. Legalizing prostitution does not
necessarily mean we agree with what it entails but it means that we as a people are able to
compromise for the better good of our democracy. Prostitutes are citizens just like any other
Kenyan and it is their constitutional right to enjoy all the rights and freedoms every other Kenyan
enjoys. Therefore prostitution should be legalized in order for them to be part of the full experience
of being Kenyan.
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References

Gballinger (2011, April 10). Current legal framework: Prostitution in Kenya. IMPOWR.org.
Retrieved from http://www.impowr.org/content/current-legal-framework-prostitution-
Kenya

Gibendi, R. (2014, October 24). Kenyans want sex work legalized-survey. Daily Nation.
Retrieved from http://www.nation.co.ke/news/1056-2498498-m9xjh0z/index.htm

Kinuthia, N. (2016, February 10). Prostitution: Here is the devil’s advocate. Standard Digital.
Retrieved from http://www.standardmedia.co.ke/article/2000191135/prostitution-here-is-
the-devil-s-advocate

M. James and K. Dan (2009, September 24). A case for legalizing prostitution. Standard Digital.
Retrieved from www.standardmedia.co.ke/article/1144024675/a-case-for-legalizing-
prostitution

Nyagah, F. (2017). Position Paper on the Legality of Prostitution in Kenya. Academia.

Retrieved from
http://www.academia.edu/5036221/Position_Paper_on_the_Legality_of_Prostitution_in_
Kenya