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MBABANE – “The arrest of ladies on the basis that they are loitering and leaving the men who are found with them is discriminatory and in conflict with Section 20 of the Constitution.”

Lawyers for Human Rights in Swaziland say the men should also be arrested. Section 20(1) of the Constitution provides that: “All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.”
This follows the arrest of about 30 sex workers in Manzini. Well-known human rights lawyer Sipho Gumedze pointed out that the Crimes Act, in terms of which the sex workers were charged, was a legislation that was enacted during the dark years when black people were still considered subhuman by the colonial white settlers.

He said the law had the connotation that a black person was good for nothing person except for vile. Gumedze mentioned that Swaziland had retained this legislation despite the reality that it conflicted deeply with rooted beliefs of the Swazi nation.
The Crimes Act  6 of 1889 provides that; ‘(1)A person shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred Emalangeni or, in default of payment thereof imprisonment not exceeding six months, who (e)is found loitering at anytime in any thoroughfare or public place or near any welling house, shop, store or any enclosed place or veld or bush for the purpose of prostitution or solicitation or to the annoyance of the public: (Amended K.O-I-C. 31/1975; K.O-I-C. 27/1977).

‘Provided that in any criminal proceedings under this paragraph the onus shall be on the accused to establish that he was not in such thoroughfare or public place or near such dwelling house, shop or store or enclosed place for any of such purposes.’
Gumedze stated that this piece of legislation was very outdated as it was in conflict with the Constitution in two respects. The human rights lawyer said the first instance it conflicted with the presumption of innocence. Section 21 (2) (a) provides that; ‘A person who is charged with a criminal offence shall be presumed to be innocent until that person is proven guilty or has pleaded guilty.’
The Crimes Act provides that once you are found to have been in any thoroughfare you shall be presumed to be soliciting prostitution. It says that the onus of proving that you were not committing a crime is on you who has been charged with the offence and not on the prosecution.

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