There is no telling the fact, sexual harassment and workplace assault can adversely affect men and women and ultimately have serious implications for their employers . CHIJIOKE IREMEKA reports
•No provision in Labour Act that prohibits sexual harassment, others
•Lagos Criminal Law only prohibits unwelcome sexual advances, favours
Quietly, many women and men alike, in the world face an uphill battle at home, at work and on college campuses.
The battle is sexual harassment. The numbers are staggering. Every day, hundreds of thousands of women and men are sexually harassed. In the developing nations, due to customs and traditions, women and men are afraid to speak out; they feel ashamed and are fearful of losing their jobs, if they bring sexual harassment to the attention of authorities, especially in Nigeria where a hundreds of applicants chase after a solitary job opportunity.
Thus, sexual harassment is clearly an example of the challenges faced by the human resource function in the new global market and this is worsened in Nigeria by the silence of the Nigerian Labour Act on workplace sexual harassment.
If an employee considers that the employer is harassing him/her, the employee can terminate the employment contract by providing an appropriate notice. On the other hand, if an employer terminates the employment contract, it is not considered as harassment because the Nigerian law clearly states that the employer can terminate the employment contract for any reason or may be for no reason at all.
Though a Labour Standards Bill was submitted in the National Assembly in 2008, which had provision for sexual harassment to bridge this gap, yet the said bill has not been passed into law.
Sunday Telegraph learnt that this has been adjudged the reason for the continued menace in the country and perpetrators have a field day since they discovered that Labour Act is silent about the evil they commit; the victims are confused as to what legal measures to take to address the issue of sexual harassment in the workplace.
However, despite that fact that the Labour Act has no provisions criminalising sexual harassment in the workplace, some lawyers and human rights groups have found an alternative ways to bring the perpetrators to book.
The Constitution of the Federal Republic of Nigeria 1999 as amended, the ground norm of Nigerian Law, on the other hand, guarantees the right to dignity of persons and right to personal liberty which workplace sexual harassment violates.
According to studies, international conventions and instruments universally recognise a person’s right to work with dignity and be protected from all forms of sexual harassment also.
Recently, the Nigerian Embassy in Germany sacked a senior security official, Martins Adedeji Oni, after he was found guilty of sexual abuse.
Nigeria’s Ambassador to Germany, Yusuf Tuggar in reaction to the viral video that implicated Oni said that the embassy has a zero-tolerance policy towards abuse of office and especially sexual misconduct.
In a similar case, the Ogun State government suspended the Commissioner for Environment, Abiodun Abudu-Balogun, from office pending the conclusion of an independent investigation into an allegation of sexual harassment of a 16-year old Barakat Mayowa Melojuekun. In a statement issued in Abeokuta, the Secretary to the State Government, Mr. TokunboTalabi, said the suspension of the Commissioner is to enable him to cooperate fully with the independent investigation being carried out by the Police.
“Whilst taking cognizance of the principle of a suspect being presumed innocent until proven guilty and the public statement issued by Hon. Abudu-Balogun denying the allegation, as a government with zero tolerance for gender-based violence and indeed any criminality, the suspension is a further demonstration of the commitment of Prince Dapo Abiodun Administration to fairness, equity, justice and the rule of law, no matter who is involved,” the statement said.
Nevertheless, a female Nigerian jobseeker shared a conversation she allegedly had with a married and a potentially adulterous employer who offered to give her a job on condition she slept with him. She registered her disappointment with the caption: “Some men are heartless. I give up! Ladies!
The best thing is to employ yourselves. There might be someone on your timeline who can help me with capital to start business.” Hope was heightened as the Criminal Law of Lagos State 2011 has provisions criminalising sexual harassment making Lagos State, the first state in Nigeria to make laws against sexual harassment.
Section 262(1) of the Criminal Law of Lagos States 2011 provides that: “Any person who sexually harasses another is guilty of a felony and is liable to imprisonment for three years.”
Section 254(C) (1) (g) of the Nigerian Constitution 1999 as amended makes specific provisions granting the National Industrial Court of Nigeria exclusive jurisdiction over causes and matters “relating to or connected with any dispute arising from discrimination or sexual harassment at the workplace.”
Following this constitutional provision, the National Industrial Court of Nigeria (NICN) has awarded damages in deserving cases against perpetrators of workplace sexual harassment.
In Pastor (Mrs.) Abimbola Patricia Yakubu Vs Financial Reporting Council of Nigeria &Anor (Suit No NICN/LA/673/2013; judgement delivered on the November 24, 2016), the claimant’s case was that she was at various times subjected to continuous sexual and seductive gestures and compliments, promiscuous and obscene talks, demand for sexual favours and indecent marriage proposal from the 2nd defendant while she was in the employment of the 1st defendant.
The NICN held that the claimant’s right to human dignity and self-worth was violated by the 2nd defendant and awarded the sum of N5,000,000 (Five Million Naira) as damages in favour of the claimant. Recently, the National Industrial Court (NIC) amended its civil procedure rules to include provisions on workplace sexual harassment.
Order 14(1) of the National Industrial Court of Nigeria Civil Procedure Rules 2017 provides that where a claimant alleges sexual harassment in the workplace, it should be indicated if the sexual harassment is:
“a. Physical conduct of a sexual nature: such as unwanted physical contact, ranging from touching to sexual assault and rape, strip search by or in the presence of the opposite sex, gesture that constitutes the alleged sexual harassment ; and/or
“b. A verbal form of sexual harassment: such as unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex related jokes or insults, or unwelcome graphic comments about a person’s body, unwelcome and inappropriate enquiries about a person’s sex life and unwelcome whistling at a person or group of persons, any document, material or exhibit in further support of the claim; and/or“
c. a non-verbal form of sexual harassment which includes unwelcome gestures, indecent exposures, and unwelcome display of sexually explicit pictures and objects ; and/or “
d. a quid pro quo harassment where an owner, employer, supervisor, member of management or co-employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an employee or job applicant in exchange for sexual favours.”
From the foregoing, a legal practitioner, Emeka Ndukwe noted, sexual harassment is not only made an actionable claim, we are also clear on how to prove it in court and what amounts to workplace sexual harassment. He note that any worker who is a victim of any of the above actions can institute an action at the National Industrial Court and get remedies including damages, compensation and an injunction.
He stated that the Criminal Law of Lagos State prohibits harassment that implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interferes with the person’s work or educational performance or creates an intimidating, hostile or offensive learning or working environment.
“In addition, any person who sexually harasses another in Lagos State is guilty of a crime and is liable to imprisonment for three years,” he noted.
Sunday Telegraph gathered that another interesting legislation which protects women against sexual harassment is the Sexual Harassment in Tertiary Educational Institutions Prohibition Act 2016 (“Sexual Harassment Act” or “SHA”).
While Section 3 of the Sexual Harassment Act recognises the existence of a relationship of authority, dependency and trust between an educator and a student in an institution, breach of which is unlawful, an educator who commits an offence of sexual harassment (extensively defined in Section 4 of the Act to include having or demanding sexual intercourse from a student as a condition to the giving of a passing grade, grabbing, hugging, pinching or stroking any body part of a student, whistling or winking at a student or making sexually complimentary or uncomplimentary remarks about a student’s physique), is liable on conviction, to be sentenced to imprisonment of up to 5 years but not less than 2 years.
While the enactment of the Sexual Harassment Act is noted as a welcome development and great victory for the war against sexual harassment in Nigeria, people struggle to understand why the Sexual Harassment Act was limited to only tertiary educational establishments and not extended to include harassment in not only educational institutions but also workplaces in Nigeria.
Going forward, experts recommend an amendment of the Sexual Harassment Act to include all educational institutions and workplaces in Nigeria.
Also, weighing – in former vice president and presidential candidate of the People Democratic Party (PDP) in the 2019 general election, Atiku Abubakar, in a statement signed by Head, Atiku Media Organisation, Paul Ibe, condemned Sexual harassment in whatever form.
He said there is no need to allow young people face psychological trauma due to sexual harassment.