On 8 September 2016, the Malawi High Court pronounced a landmark judgment on the criminalisation of sex work in Republic v Banda [2016] MWHC 589. The case dwelt on section 146 of the Penal Code which criminalises ‘[e]very woman who knowingly lives wholly or in part on the earnings of prostitution…’ The applicants argued, among other things, that this provision does not target sex workers themselves but their exploiters. Finding in favour of the applicants on this score, Ntaba J made important remarks that highlighted the history of section 146 and its application in Malawi. The judgment is progressive and makes a significant contribution to the jurisprudence on the criminalisation of sex work-related crimes and their abuse, particularly the wanton arrests of women on the basis of them being sex workers. This analysis focusses on the court’s inadequate emphasis of the experiences of female sex workers arrested for this offence.
Banda deserves a feminist analysis because it deals with an offence which is often used to victimise women, subjecting them to ridicule, unlawful arrest, misconceived convictions and sentences. The judgement inadequately captures the impact of the criminalisation of sex work-related activities on and the lived realities of female sex workers in Malawi. This contribution also takes issue with the court’s attempt to adopt a neutral stance regarding the propriety of criminalising sex work, a position which complicates its concerns around the discriminatory and other negative impacts of the law on women. The court’s choice of words also calls for comment. For instance, the court makes mention of ‘innocent women’ who are captured within the overly wide breadth of section 146. This characterisation draws an explicit line between the ‘guilty’ sex workers and the ‘innocent’ beneficiaries of their work.
The judgment is also criticisable for failing to concretely determine that a literal interpretation of section 146 leads to the inescapable conclusion that it targets sex workers themselves and not just their exploiters. Had this been clearly accepted, the court should have come out more strongly on the implications of this position and the remedial action required to ensure that women are equally protected by the law. The judgment also needs a feminist analysis to enhance discourse on the constitutional implications of section 146 on the rights of female sex workers including the gendered aspects of unlawful arrest. Lastly, this analysis is warranted due to its relevance to broader worrisome policing trends in the enforcement of vagrancy offences in Malawi and the importance of obiter dicta in shaping future jurisprudence. Acknowledging that a court is largely bound by the submissions before it and to highlight the role of the courts in promoting a gendered perspective to all cases, the analysis also canvasses a gendered critique of the submissions before the court.
A feminist analysis of Banda therefore has the potential to go a long way in highlighting and hopefully righting some of the injustices that women suffer at the hands of the criminal justice system.