On Friday, 8 July the Asijiki Coalition for the Decriminalisation of Sex Work wrote to the Commission on Gender Equality (CGE) to voice its concern over the increasing influence of individuals within the CGE who are using their positions to impose their personal moral views on issues such as sex work, termination of pregnancy and the rights of persons who do not identify as heterosexual and/or cisgender. We are observing a steady erosion of the rights which South Africans have fought for.
In addition to our general concerns as expressed above, we also expressed our strong opposition to the CGE’s proposed review of its standing position on the decriminalisation of sex work in South Africa. The letter expresses concern with the process which the CGE is following with regard to the review of its position on the decriminalisation of sex work. It has come to our attention that the CGE established a committee in terms of the CGE Act in 2019 regarding the decriminalisation of sex work in South Africa.
The CGE adopted an official standing position in support of the decriminalisation of sex work in 2013. Since then, there has been no indication that the CGE is reconsidering this position. As recent as 8 March 2022, the CGE released a statement to the media titled “Commission for Gender Equality welcomes progress towards the decriminalisation of sex work in South Africa” which reconfirms its position in support of the decriminalisation of sex work. In the statement, the CGE stated that “In the opinion of the Commission, sex-work (sic) is an issue that must be dealt with through economic and social interventions rather than criminal law.” And “As a result of the overwhelming evidence, the Commission reiterates its position that the current regulatory regime criminalizing sex work in South Africa has failed to protect the rights of sex-workers …”
We therefore find it difficult to understand how it is possible that the CGE could issue such a strongly worded statement in support of the decriminalisation of sex work when it had already constituted a committee and we asked for an explanation in our letter.
During a meeting with representatives of SWEAT, Sisonke, Sonke Gender Justice and the Asijiki Coalition on 15 June 2022, the CGE stated that it had become necessary to establish a committee to consider further issues that had come to light which affects the CGE’s position regarding the decriminalisation of sex work. As the CGE came to its current position regarding the decriminalisation of sex Work “as a result of the overwhelming evidence …”, we can only conclude that the information that has come to the attention of the CGE which would prompt the CGE to reconsider its position must be of overwhelming significance. We have asked the CGE to provide us with this new information which has resulted in the establishment of the committee as well as the Terms of Reference of the committee.
We have serious concerns regarding the process that was followed in order to establish the committee and have requested the minutes of the meeting that was held in 2019 where the resolution was passed to establish the committee. In addition to our questions regarding what prompted the establishment of the committee, the process that was followed to establish it, and its ultimate purpose, we also have concerns in relation to the members of the committee. We have had to rely on information sourced through networking partners, because the CGE has not made the names of the committee members public. However, if the information that has been provided to us is correct, the committee consists of members who are strongly biased against the decriminalisation of sex work based on their very strong personal moral convictions. We placed on record our official objection to the composition of this committee as we believe that it is not impartial as required by the Constitution. We asked the CGE to confirm the names of the members of the committee, the rationale behind their selection as well as the process that was followed in their selection and appointment.
During the June 15th meeting the Section 6 committee chairperson, Nthabiseng Moleko defended the inclusion of Dellene Clark (South African Law Reform Commission) as a committee member. Dellene Clarke was part of the SALRC Report process. That report (published in 2017) is peppered with these phrases: “sexual exploitation”, “prostitution is degrading to the prostitute and to women in general”; “prostitution is equated with rape”, “one theory labels prostitutes as ‘vectors of disease’ causing a cesspool of iniquity and contagion that should be curbed through criminalisation”, and “immoral purposes”. That very same report also unbelievably recommended sex workers to be put into ‘diversion programmes’ to receive “intensive therapy” to avoid jail time. It is not unreasonable for us to question the objectivity of a person associated with a report as violent and offensive as it is absurd.
We have not been consulted as stakeholders in this process and we cannot help but to conclude that the CGE is rushing through a process in secrecy in order to reach a predetermined decision. The process also appears to be designed specifically in order to exclude sex workers, whose lives will be directly affected by the CGE’s recommendations, from participating. We were assured by the CGE of in-person consultations with sex workers, but last week we were notified by our stakeholders of a flurry of urgently scheduled CGE virtual consultations.
We have asked the CGE to respond by this Friday, July 15th and if we are not satisfied that our objections and queries are being addressed, we will consider appropriate actions in order to challenge this process. Participation in this box ticking process at this point would simply validate a deeply flawed and potentially unconstitutional process.
We would also like to remind you that the CGE has a duty to act in an impartial manner and to follow transparent processes.
We ask that you support us in holding the CGE accountable and more importantly, to protect the rights of sex workers.