The above reveals the incongruity of encounters between government and sex worker representatives in the context of HIV/AIDS prevention and care partnerships. The study reveals three overarching tensions that contribute to the gaps between policy and practice in the participation of sex worker-led organizations in government initiated partnerships on HIV prevention and care partnerships; these are (1) criminalization, i.e., sex work is still criminalized in Kenya; (2) devolution, a system of government within which the local governments takes center stage in the administration of localities within a nation; and (3) different appraisal of expertise, the way in which the different types of knowledge and organizational experience that partners bring to the policy table are valued.

Criminalization

The Penal Code (Laws of Kenya, 2014) is the national legal framework that criminalizes sex work through “third party involvement” (i.e., it targets parties which organize or facilitate sex work but not sex workers themselves). This legal framework delineates the legal space within which the country’s 47 counties can develop by-laws regarding sex work. In practice, this means sex work is further criminalized through county by-laws targeting individual sex workers and not only brothel owners for instance (see more below).

The first factor is tied to the criminal status of sex work in Kenya. Different laws criminalize sex work in Kenya. As mentioned above, the Penal Code is the national legal framework which does not directly criminalize sex work, but it prohibits the role of third parties in organizing and profiting from sex work. The regulation of sex work on county level differs per county, but in general criminalizes sex work by also targeting individual sex workers and not only third parties. For example, the current Nairobi “City By-Laws” state under General Nuisance that “loitering, importuning or attempting to procure a female/male for prostitution purposes” is an offense. Hence, most sex workers are arrested by county police (locally dubbed “Kanjo”) and taken to a county court where they are charged on the basis of county by-laws (FIDA, 2008). An interviewed police officer who sometimes participates as a consultant to the TWG stated:

You don’t break the law [i.e. the Penal Code] when you have sex, the act itself, but when you get money, yes. No one has been charged yet with living of proceeds, it is very hard to prove. Most prostitutes are arrested for loitering for immoral purposes [by county police]. When they are taken to [the county] court, they just say yes and pay 500 Kenyan Shillings. If they say no it means a long court case and a lot of money, which they don’t have. It is very illogical because it costs a lot of money to arrest a sex worker. The police officer, the vehicle, the court people, the judge, everything needs money and the court only gets 500 Kenyan Shillings. For economic purposes alone we should legalize sex work.

Noteworthy, recent strategic plans of NACC 2011 and 2014 the possibility of de-criminalizing sex work to improve access to healthcare for sex workers. However, the plans also state that attempts to de-criminalize sex work have faced significant resistance among different religious and cultural groups. The recognition by NACC of the positive effect de-criminalization can have is in line with international tenets in the fight against HIV/AIDS which perceive the illegal status and negative attitudes as obstacles to effective HIV prevention interventions for sex workers. In addition, around the same time, guidelines for peer education among key populations were published which emphasized the importance to “create an enabling environment in which sex workers have access to appropriate, affordable, acceptable and assessable health services without being penalized” (UNAIDS, 2012; WHO et al., 2013). Similar statements are made in the National Guidelines for HIV/STI programs for sex workers developed by NASCOP (2010). These guidelines express concern about key populations’ experience of barriers “to accessing services because their behaviors are criminalized and stigmatized making them marginalized and hard to reach members of society”, and posits that HIV/STI and other reproductive health interventions should not only be “accessible but also acceptable” to sex workers (2010 p. 23; Nyblade et al. 2015). The said guidelines even explicitly state that such interventions need to “respect sex workers’ human rights and accord them basic dignity (e.g. services are voluntary)”; moreover, interventions should be based on “sex workers’ views, knowledge and life experiences” (2010 p. 29). Finally, the guidelines recognize the essential role sex workers play as “part of the solution” (2010 p. 29).

All government representatives interviewed posited that the human rights concerns and directions for participation of sex workers articulated by NACC and NASCOP stand on tense footing with the existing legal frameworks of national and local governments. Moreover, they also shared that powerful parts within national and local levels of government in Kenya do not acknowledge the human rights perspective as a viable way to approach sex work because it is still criminalized by law. Ensuing tensions fundamentally shape the ambivalence with which these agencies engage with sex workers. Accordingly, one of the main barriers to more equal partnerships between sex worker-led organizations and the government is the division within government on sex work, and the lack of political leverage by NACC and NASCOP to solve ensuing tensions.

The government representatives unanimously declared that the government is stretched between two opposites. One part of the Kenyan government (represented by NACC and NASCOP) is guided by a form of “health pragmatism” and by a push from international donors to become more inclusive and acknowledge sex workers’ human rights in the fight against HIV/AIDS (see UNAIDS, 2014). The other part is directed by an alleged moral panic regarding sex work and continuously fight any attempt to decriminalize it. This leads to a split within government whereby it is possible that one arm of the government tries to engage sex worker-led organizations as partners and work together to, for instance, distribute condoms to sex workers, while another arm uses the same condoms as evidence to arrest them (Abdalla, 2015). Several government representatives avowed that the lack of power to solve this internal divide is illustrated by the recurrent emphasis by NACC and NASCOP of the need for more evidence to convince colleagues in other parts of the government of the urgency for decriminalization of sex work. This demand for more data paradoxically does not take into account the already existing body of evidence which illustrates the links between criminalization, stigma, and human rights violations of sex workers (e.g., Bruckert & Hannem, 2013; Harcourt et al., 2010).

However, in the context of this article, it is important to focus on the impact this divide within government has on the partnerships between government organizations such NACC and NASCOP and sex worker-led organizations. The lack of trust between these, frequently expressed by all the sex workers we interviewed, is a direct result from the inability of the two government agencies to solve said tension. When one partner (the government) is responsible for the marginalization, harassment and discrimination of the other, how can one imagine these two partners to build enough trust to achieve a more equal basis for interaction? Indeed, the two government agencies proclaim a human-rights-based approach and favor decriminalization, yet the government as a whole does not, and sex worker-led organizations are acutely aware of this. Consequently, sex worker-led organizations have stated that they harbor low expectations of what they can accomplish in their partnerships with NACC and NASCOP and prefer to strategize with international partners rather than with the national agencies.

Representatives from different sex worker-led organizations have time and again shared that they are aware that their invitation to partner in the TWG is fueled by the growing donor focus on the participation of key population in the fight against HIV/AIDS. Additionally, they realize that their invitation to participate is conditional and their presence will cease to be welcomed when international pressure no longer demands it. Even if this is an unfair judgment on individual efforts within said agencies, it clearly demonstrates how the leaders perceive the limitations of government efforts to engage with them as partners. Thus, their interactions can be described as a rather “weak” partnership, meaning that these partnerships are experienced, at least on the side of the sex workers, as highly contingent on external factors such as donor demands rather than on internal motivations. In contrast, focusing on international partnerships enables sex worker-led organizations to validate and expand their efforts and build their capacities in the long run. As a result, leaders often experience these as “strong” partnerships. Yet, this also contributes to more tension between the government and sex worker-led organizations for the latter do not primarily depend on the government to provide services to their constituencies. It can be argued that, at present, the government needs the participation of sex worker-led organizations more than the other way around since “community participation” is a key requirement of most funding NACC and NASCOP receive from international donors. In contrast, participation with government agencies is not a requirement for most funds sex worker-led organizations receive from international NGOs. This, of course, affects the partnership and adds to the complexities of the relationships. It also demonstrates that sex worker-led organizations have some leverage and are not just located at the bottom tier.

An interview with a program manager at UNAIDS pointed out the important role of international donors in this respect.

We make space for dialogue, and lobby to influence policy. In the most recent strategic frameworks, we pushed for the more controversial agenda points. We do what NACC and NASCOP can’t do, but with their mandate. When we push it, it adds considerable weight to an agenda, and government can’t ignore us. We use our power to help NACC and NASCOP, and local NGOs, to move a more progressive agenda. We push for change, and provide tools for advocacy, that is our mandate. We have very little money, we are more policy oriented. But, we also initiate joint fund raising, like the Global Fund proposal, we made sure key populations are involved as partners, we make sure they are recognized and included in the targets as key populations.

In the above excerpt, this representative posits that UNAIDS helps NACC and NASCOP to resolve the tensions within government regarding sex work. In this vein, UNAIDS does not only push for a more progressive agenda on behalf of key populations but also on behalf of these government agencies that do not have the same leverage but do share such policy visions. This also, again, reveals that said agencies experience considerable headwind within government, which hinders them to follow through on their policy intentions, a situation that would grow more acute were it not for the powerful back-up of international partners.

However, these already rather temporal solutions forged through the mediation of international partners are severely backtracked by another development. All the complexities involving the realization of more horizontal partnerships between government and sex worker-led organizations were decidedly augmented when devolution made its entree.

Devolution

Government and sex worker representatives all pointed at devolution as the second factor contributing to tensions between policies. Devolution denotes the decentralization of government, which commenced in Kenya after the promulgation of the new constitution in 2010 (Greste, 2010). Most prominent in the new constitution’s dispensations was the objective of devolution, that is, the transfer of some of the central government functions to the 47 county governments with the aim of ensuring equality and equity in service deliveries. By-laws inherited from the former local government’s municipal councils were still enforced during the period research was conducted, which partly coincided with the transition period (2013–2015). However, The Transition to Devolved Government Act () gives the county governments powers to also develop their own by-laws as long as these are in line with the national legal frameworks. Interestingly, the ratification of the new constitution coincided with NACC and NASCOP’s ambition to include representatives of key populations as participants in HIV prevention and care partnerships. This is not a coincidence because citizens’ participation in the governance of their affairs is central to devolution—as per articles 10(2), 69(1) (d), 174(c), and 184(1) (c) of the constitution of Kenya. The County Government Act sections 99 to 101 also stress the importance of civic education aimed at creating an informed citizenry that would actively participate in governing society (Republic of Kenya 2013). Similar to the aforementioned government agencies, local governments also struggle with the execution of “public participation,” especially where it concerns marginalized communities.

What is more, devolution made the still relatively new and rather ambivalent relationships between the government and sex worker-led organizations decidedly more difficult. On the one hand, public participation was considered central to a devolved system of government, yet on the other, counties were also granted power to decide on the nature of such partnerships. In the past few years, county governments have gradually taken over national HIV services. To enable a smooth transition, NASCOP has seconded its staff to the relevant county government programs (referred to as County AIDS/STI Coordinating Programs—CASCOPs) to oversee the continuity of services during transition. A policy-maker at NACC related that, despite time passed, the current challenge remains encouraging county authorities to take on the responsibility of developing and implementing HIV prevention strategies together with key populations (Interview 12 January 2015). This is trickier than it appears at first because counties have the mandate to develop their own budgetary priorities and can use financial arguments to cease partnerships and programs. To illustrate this, the NACC representative stated:

Male sex workers are even more vulnerable than female sex workers. They are even more mobile, they live nomadic lifestyles. That mobility and also the clandestine lifestyle adds to their weak social positions. It will be very difficult for them to operate a business. That stigma in society is very high, for example I was in Kilifi (a county in Kenya) to discuss devolution of our programs and the Muslim clerics said we can discuss [female sex workers], but [male sex workers]? No, there are no [male sex workers]. Kilifi! You know how many there are? With women, they are against divorce so they feel pity for women who have to do sex work after divorce. In Islam, men have to provide for their wives for life. So, they see it as their duty even to help these women, who lack life skills because they have been married young, but men? No.

To counter this, NACC has teamed up with national and local sex worker-led organizations, among others, to (again) compile (more) evidence and convince reluctant counties of the urgency of and lobby for the inclusion of all sex workers in strategic partnerships. The policy-maker at NACC explained that there are still many roadblocks that have to be tackled before partnerships between sex workers and government are realized on a county level. Alongside complicating decision-making structures and money flows, the above quote reveals that devolution is also problematic because there is more space for county governments to exclude sex workers from participation as many are guided by an alleged moral panic of (particular forms of) sex work. The tenet of devolution, namely public participation, should provide ample opportunities to local sex worker-led organizations to forge partnerships with county governments within the context of CASCOP, yet the lack of political will in various counties complicates this. In this context, NACC and NASCOP play a similar role like the international partner and mediate between county governments and sex worker-led organization. However, the uncertainty of money flows between government and counties cuts deep into their leverage.

Different appraisals of expertise

In the above, we have looked at the way criminalization and devolution affect the goal of the government to achieve more horizontal partnerships with sex worker-led organizations. The criminal status of and alleged moral panic concerning sex work are the more obvious tensions that impact policy ambitions on national and county levels, thus preventing the acceptance of sex workers as equal partners, the latter with great risks on cooperation for change. One aspect involved in all this merits further elaboration. Most sex worker activists that were interviewed for this research expressed concern that their expertise was undervalued and as such underused by other TWG members. The observations done by van Stapele at meetings corroborated their sentiments, as she observed and wrote in her field notes the many different moments their contributions were ignored.

As relatively recent members of the TWG, sex worker-led organizations are included to assist government bodies and NGOs in outreach work concerning more effective distribution, prevention, monitoring, and forecasting of medical supplies and safe sex items. Also, sex worker-led organizations are invited to take part in the execution of program activities. As of yet, this has, however, not led to more equal partnerships in terms of decision-making regarding policy and programming. Sex worker representatives shared that while they are present at the table, they nonetheless often feel as if they do not contribute to the process in any significant way. One even described it as: “It is like they [government representatives] don’t even hear us” (interview with a sex worker representative, 6 August 2015).

Sex workers bring to the table an enormous amount of experiential knowledge. Moreover, these organizations have a wide and immediate reach among their peers and the ability to improvise as changing situations emerge and unfold. For example, if a particular place of work (for example a bar) is abandoned due to a risk of police violence, the peer educators of sex worker-led organizations will immediately know where it has moved to and change their outreach plan accordingly. Also, sex worker-led organizations can mobilize members quickly to address urgent matters. On 12 October 2015, a fifth sex worker in Nakuru was murdered within a short time span. It took the sex worker-led organizations in Nairobi, which is situated about 3 h by public transport from Nakuru, less than 4 h to mobilize a large crowd from Nairobi to demonstrate together with sex workers in Nakuru and demand proper investigations from the local police (personal observation by Van Stapele, 12 October 2015). This type of knowledge and reach, coupled with flexibility and commitment, are key features of sex worker-led organizations. In other words, sex worker-led organizations have a vast network of peers and relatively up-to-date knowledge of everyday experiences, whereabouts, and needs of fellow sex workers. This also implies that they have their own practice-based and “adhocratic” (Dunn, 2012) ways of organizing that sometimes clash with the bureaucratic or professional forms of organizing by government and NGOs, respectively.

In bureaucratic organizations such as government-based organizations, there are high levels of formalization as well of standardization of tasks and skills, including expectations of how others should “organize” and what kind of knowledge counts. The same goes for professional organizations such as NGOs. Most government and NGO policy officials in the health sector are accustomed to ground policy and program development on quantitative data—such as derived from surveys. The taken-for-grantedness of a “formal view” on knowledge and policy development prevents partners from making use of other forms of knowledge and knowledge development, especially experience-based and ad hoc knowledge. Policy professionals in this sense are accustomed to and thus have an inclination to use “rationally ordered” information—as deducted from surveys and graphs—and lack skills to make use of life histories and other forms of qualitative data. They might not even recognize the latter as knowledge. This greatly complicates collaboration between government and sex worker-led organizations, as the next example illustrates.

On 20 January 2015, van Stapele observed a meeting where TWG members participated in an exercise facilitated by the University of California San Francisco to evaluate quantitative data and identify possible policy priority areas. Two factors stood out during this seminar that help understand what stands in the way of attaining more horizontal partnerships. First, the representatives of the different TWG actors participating in the discussion did not seem to share a common language. Language here means the same jargon that was used in discussing data and ensuing implications for policy development. Most of the sex workers participating in the discussions did not understand some of the technical terminology used, which excluded them from certain parts of the debates. Second, the contributions by the sex workers were not taken up in the final conclusions. During the debates, several sex workers voiced their rejection of particular conclusions that were drawn on the basis of the quantitative data. They supported their position by narrating personal experiences that illustrated their arguments, which were dismissed by a few other participants as “subjective.” It was thus clear that the manner in which the sex workers supported their objections clashed with the presentation of the conclusions based on the quantitative data, whether this was the reason their comments were ignored can only be speculated. Some sex workers left the meeting earlier, and one later explained that she did not feel “appreciated” and was angry that the other TWG members continued with conclusions she deemed highly problematic based on her own experience as a sex worker and that of her friends.

The meeting described in the above reveals that there does not seem to be any room for negotiation regarding how to include different types of knowledge, each valuable in their own ways. Instead, formalized knowledge takes a hegemonic position. As brought out by the government representative during the February 2016 meeting, discussed earlier, he and other of the government policy-makers participating in the TWG lack the expertise sex workers have and do not know how to use it. Concurrently, many sex workers lack the technical competences needed to evaluate quantitative data and translate these to policies or patterns of lived experiences. Yet, the organizational power dynamics underlying these partnerships favor the latter skill-sets and are thus more exclusive to the sex workers than they are to the other TWG members. This analysis of different types of knowledge is not usually an issue that is consciously reflected upon in studies concerning community-based participation. However, this example revealed how these tensions reinforce unequal power relations between the actors and infer ways to making such spaces more inclusive and thus more effective.

What needs to be explored then is the receptivity and capability of dominant organizations (such as the government and NGOs) to include community representatives to not only take part in discussions but also, and more importantly, to initiate agenda setting and genuinely influence decision-making. If not, any potential for achieving more horizontal partnerships is at risk and sex worker representatives continue to participate on the terms of the more powerful (see Oloka-Onyango & Tamale, 1995).