Sexual Rights Centre v Officer Commanding Bulawayo Centre District N.O. and Others

The Sexual Rights Centre, a human rights organisation representing vulnerable and marginalized persons including sex workers, applied on 11 December 2015 to the Officer Commanding Police, Bulawayo Province for permission to conduct a peaceful march on 17 December 2015 to commemorate the International Day to End Violence Against Sex Workers. The purpose was to raise awareness about violence against sex workers and women generally. The police refused to sanction the march on 14 December 2015, stating that "sex workers (prostitution) is illegal in the country hence the commemoration will not be sanctioned." The applicant challenged this refusal as unconstitutional, arguing it violated their rights under sections 58 and 59 of the Constitution of Zimbabwe (Amendment No. 20), 2013. The applicant sought a declaration that the prohibition was unlawful and an order setting aside the police decision.

• Whether the High Court has jurisdiction to hear constitutional matters relating to fundamental rights under sections 85 and 171 of the Constitution
• Whether the police decision to prohibit the march violated the applicant's constitutional rights to peaceful assembly and demonstration under sections 58 and 59 of the Constitution
• Whether the limitation of the right to demonstrate was justified on grounds of public morality under section 86(2)(b) of the Constitution
• Whether sex work (prostitution) is illegal in Zimbabwe
• Whether sex workers are entitled to equal protection under the law and the right to demonstrate peacefully
• The extent to which fundamental rights may be limited in terms of section 86 of the Constitution

The application was dismissed with costs.

The binding legal principles established are: (1) The High Court has jurisdiction under sections 85 and 171 of the Constitution to hear applications alleging infringement of fundamental rights; (2) Sex work (prostitution) per se is not a crime in Zimbabwe - only associated conduct such as soliciting, procuring and allowing young persons to engage in prostitution are criminalized under sections 81-87 of the Criminal Law (Codification and Reform) Act; (3) Police cannot lawfully prohibit or limit the exercise of fundamental constitutional rights without approaching the courts for an order; (4) Fundamental rights under sections 58 and 59 of the Constitution may be legitimately limited on grounds of public morality under section 86(2)(b) where the limitation is authorized by law of general application and is fair, reasonable, necessary and justifiable in a democratic society; (5) A demonstration or march that may promote or glorify prostitution, even if intended to raise awareness about violence against sex workers, can be legitimately prohibited on grounds that it is morally reprehensible and inconsistent with societal moral values and the dignity of persons; (6) The burden of justifying a limitation on fundamental rights rests on the party seeking to uphold the limitation, but the court must consider mero motu whether a limitation is justifiable even if not argued.

The court made several non-binding observations: (1) Violence against women and abuse of children is roundly condemned, yet similar violence against sex workers (most of whom are women) is not given the same prominence and protection, which the court found odd; (2) Sex workers operate on the basis of mutual consent between adults and their existence is a reality worldwide; (3) By engaging in commercial sex work, prostitutes accept the risks involved and knowingly lower their moral standing in society; (4) Prostitution is associated with social ills including violent abuse, international trafficking in women, child prostitution, disease, HIV/AIDS, and drug abuse; (5) If the court allowed prostitutes to parade and glorify their trade, other groups promoting "perverse acts" would be encouraged; (6) The court must be sensitive to acceptable moral standards of society and cannot operate in a vacuum; (7) The law must reflect and express the moral wishes of the community, otherwise it falls into contempt. The court also expressed appreciation for the submissions of amicus curiae Mr. Dube-Banda and counsel for the applicant Mr. M. Ncube.

This case is significant in Zimbabwean constitutional jurisprudence as it addresses the tension between fundamental rights to freedom of assembly and demonstration (sections 58 and 59 of the Constitution) and the limitation of those rights on grounds of public morality under section 86(2)(b). It establishes that while sex work itself is not criminal in Zimbabwe, demonstrations that may promote or glorify prostitution can be legitimately limited on moral grounds. The judgment reflects a conservative approach to constitutional rights, prioritizing societal moral values over the rights of marginalized groups. It also confirms the High Court's jurisdiction to hear constitutional matters under sections 85 and 171 of the Constitution. The case raises important questions about equal protection under the law for sex workers and vulnerable groups, and the extent to which courts should limit fundamental rights based on public morality in a democratic society. The judgment has been controversial for potentially entrenching discrimination against sex workers and limiting their ability to advocate for protection from violence.