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.