Should the Judiciary’s proposed Penal Code (Amendment) Bill, 2023 be enacted into law, Kenyans involved in sex work—both men and women—might no longer face fines or imprisonment.

The Bill, presented by Chief Justice Martha Koome, seeks to amend the classification of capital and criminal offenses in the country.

Currently, sex work, referred to as prostitution, is deemed an offense in Kenya, carrying a penalty of up to three years in prison, as specified in Sections 153, 154, and 155 of the Constitution.

The Judiciary is suggesting the removal of these three sections by amending the Principal Act also known as Section 4 of the Penal Code.

According to CJ Koome’s Bill, prostitution will remain an offense. However, it won’t be subject to imprisonment; instead, alternative methods for dealing with petty offenses will be employed.

These alternatives include the issuance of verbal reprimands, conditional discharge, probation, community service, and attendance at a rehabilitation center.

Sections 153 and 154, for men and women respectively, stipulate that sex workers engaging in proven acts of prostitution are deemed guilty of a felony.

“Every woman who knowingly lives wholly or in part on the earnings of prostitution, or who is proved to have, for the purpose of gain, exercised control, direction or influence over the movements of a prostitute in such a manner as to show that she is aiding, abetting or compelling her prostitution with any person, or generally, is guilty of a felony,” reads part of the Penal Code.

Section 155 addresses the premises used for prostitution, enabling the arrest and issuance of a search warrant for the residence of a suspected individual involved in prostitution or facilitating the same.

“If it is made to appear to a magistrate by information on oath that there is reason to suspect that any house or any part of a house is used by a woman or girl for the purposes of prostitution and that any person residing in or frequenting the house is living wholly or in part on the earnings of the prostitute, or is exercising control, direction or influence over the movements of the prostitute, the magistrate may issue a warrant authorizing any police officer to enter and search the house and to arrest such person,” the Bill reads in part.

According to CJ Koome, the primary objective of this bill is to amend the Penal Code by incorporating language that is friendly to human rights concerning individuals with intellectual and psychosocial disabilities.

Additionally, the bill aims to revise the Penal Code to safeguard the rights of intersex individuals within the criminal justice system.