Why the Constitutional Court ruling on soliciting is both shocking and necessary

Today Zimbabweans all over the country woke up to headlines in national newspapers along the lines of “Concourt outlaws prostitute arrests” – courtesy of the Herald. We’ve been making a hullaballoo about this story because of the way in which we like to sensationalise stories to do with sex, and the way that we like to stigmatise sex workers – a situation compounded by the continued criminalisation of sex work. As I am not a sex worker, I cannot speak to the lived experiences of women who are, but I can speak to the legal implications of this particular case. We’ve tried to blow it out of proportion and make it seem as though the constitutional court is entering uncharted waters but really all that the ruling said is that: before you arrest someone without a warrant you must have proof or at least a reasonable suspicion that a crime has been committed. Further, if you are arrested you are deemed innocent until you have been proven guilty. This ruling was an assertion of some of the basic principles of Zimbabwe’s legal system. It’s shocking that this required re-stating.

The National prosecuting service, consented to the ruling because they knew that they were wrong on the law. Which leads me to wonder why they had chosen to prosecute in the first place? Is it standard practice to attempt to gloss over the shortcomings of the police in creating a docket, then proceed to hold people unlawfully in the hopes that they will not have access to good legal representation? I’m aghast at the shortcuts that those working in our legal system appear to take as a matter of course. How is it that you get into court, and start prosecuting someone before confirming that you are approaching the courts with clean hands? Yes, this case has turned into a fuzzy one where our constitutional right to liberty as Zimbabweans has been guaranteed, but at the cost of a year’s worth of legal work and court fees. Additionally, we forget how precious few people even have access to the courts in the first place.

What this case also reminds me of is the way that women are continuously penalised for existing in public spaces. The idea of respectability comes in to haunt us all because of the constraints that are put on our bodily autonomy and the idea that what you wear or what work you do is somehow tied to your morality. How many women have been harassed or detained by police or peace officers simply for existing? How many have then been faced with criminal charges for crimes that there’s no proof they’ve committed and then slipped through the cracks because they don’t have access to the services of lawyers who will ensure that their rights are respected? Further – why do Zimbabweans seem to be okay with this?

Yes, I’m glad the constitutional court upheld our constitutional rights, but it should never have gotten that far. The police and the prosecuting authority also need to have due deference to the principles of criminal procedure and to the values in our constitution. This is getting ridiculous.

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