Women had for long been apprehended in various police operations and charged with loitering for the purposes of prostitution.
In Harare, such arrests had become a common feature in the Avenues area.
At times women would be arrested on suspicion arising from wearing mini-skirts.
Granting an application by nine women contesting their arrest, Deputy Chief Justice Luke Malaba, sitting with eight other judges of the Constitutional Court, declared the arrest and prosecution unconstitutional.
The nine were arrested on March 17 last year in the Avenues area in Harare by police during an operation code-named “No to Robberies and Prostitution”.
The National Prosecuting Authority — represented by Mr Toendepi Mafuwa — consented to the order after realising the loopholes in the State’s case.
Justice Malaba’s order reads: “By consent, it is ordered as follows; that the prosecution and remand of the accused persons on allegations of contravening Section 81 (2) of the Criminal Law Codification and Reform Act (Chapter 9:23) on March 17 2014 amount to a deprivation of their personal liberty in contravention of Section 49(1) (b) of the Constitution and are a denial of the fundamental right of the applicants to the protection of the law guaranteed under Section 56(1) of the Constitution of Zimbabwe.”
Section 81 (2) of the Criminal Law (Codification and Reform) Act under which the women were charged reads:
“Any person who publicly solicits another person for the purposes of prostitution shall be guilty of an offence of soliciting and liable to a fine not exceeding level five or imprisonment for a period not exceeding six months or both.”
Advocate Tawanda Zhuwarara and Mr David Hofisi of the Zimbabwe Lawyers’ for Human Rights represented the nine women while Mr Mafuwa acted for the State.
Mr Mafuwa filed heads of argument in the matter admitting that prosecuting the women without evidence proving that indeed soliciting took place was a violation of their rights.
“The respondent (State) submits that the applicants have managed to show that their rights were infringed.
“The facts seem to suggest that the applicants’ presence at the place they were arrested is criminal whereas the law says that they have to be publicly soliciting other persons for purposes of prostitution for them to be deprived of their liberty…
“The facts alleged that the applicants were found near Baines Avenue and Third Street. There is no mention that they were publicly soliciting other persons for prostitution.
“Facts do not show the person or persons who were solicited by the applicants and how the applicants solicited for prostitution,” said Mr Mafuwa.
Mr Mafuwa further conceded that the women’s rights were also violated when a magistrate in the matter threw out their application for exception to the charge.
“The respondent therefore concedes that by dismissing the application for exception to the charge, the learned magistrate infringed on the applicants’ right to equal protection and benefit of the law,” he said.
It was also the State’s concession that the charge sheet was defective and that the nine women deserved to be acquitted.