The World of Work: what the law can do about sexual harassment

In 2019, as a result of the #metoo campaign the International Bar Association commissioned research on the prevalence of Sexual Harassment in the legal profession. Nigeria Bar Association participated in the research. From the research, the below statistics emerged with respect to Nigeria:

● One in two women and one in three men have experienced bullying in the workplace;
• One in three women and one in 14 men have been sexually harassed;

• In 57 percent of bullying cases, incidents were not reported, with the figure rising to 75 per cent for episodes of sexual harassment;

• There is considerable adverse impact, with 65 percent of bullied practitioners having left or considered leaving their workplace as a result;

• workplaces are not doing enough to prevent or adequately respond to misconduct, with policies regarding bullying and sexual harassment present in only 53 percent of workplaces; and

• just one in five workplaces have conducted training in recognising and reporting problems in these areas.

In 2009, the National Library of Medicine published research carried out by Eme T. Owoaje from which the following statistics on the prevalence of sexual harassment in higher institutions emerged as follows:
● 68% of respondents had been sexually harassed with the main perpetrators being male classmates and lecturers;
● Two-thirds experienced non-physical type of sexual harassment;
● 48.2% experienced physical sexual harassment; and
● 32.2% experienced a request to do something sexual in exchange for academic favours.
Although there is a paucity of data across Nigerian society on sexual harassment, given the data from the legal profession and academia which are a microcosm of the larger society, it would be safe to infer that the same rate of prevalence may be attributed to the larger society.
Thus, to quote Prof Danfo in his summation of the tempo of workplace sexual harassment in Nigeria, “To be employed, the girl will be sexually exploited, and to be given admission into colleges meant she will be defiled. Anything a lady is seeking for makes her an easy target because of the fact that she can never get anything without patronizing the institutions of the state under a patriarchal society that had already defined her as a commodity”.
The legal framework for sexual harassment in Nigeria
i. Legal Framework pre-2010: Prior to 2010, there was no clear definition of the phrase because the principal labour and employment legislation did not recognise or define the term “sexual harassment.

This is understandable given that the Labour Act was passed in 1974 and the world has subsequently changed.
In this era, victims were limited to seeking help through the constitution for invasion of privacy or the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), which Nigeria ratified in 1985.
CEDAW is an international standard-setting document that makes provision for measures to be taken by States Parties to ensure equality of rights for women throughout the world.

The challenge however was that whilst Nigeria ratified CEDAW, it was never domesticated as required by the Constitution for it to become part of our body of statutes.

The first mention of sexual harassment was in the third alteration to the Constitution of 2010… 1 in 3 women and 1 in 14 men have been sexually harassed in the Nigerian legal profession

Following the enactment of the National Industrial Court Act in 2006, one of the powers of the National Industrial Court (NIC) is to apply international best practices in labour law issues. In addition to this, the Court was also imbued with powers under section 12 to make rules, orders and practice procedures.
At this point, the court struggled with recognition and legitimacy as it was not one of the courts recognized by the Constitution. In essence, whereas the NIC by virtue of powers vested in it could apply international best practices, it could not exercise these powers as it was constantly challenged for not being a superior court of record.

ii. Legal Framework 2010- October 2022: In early 2010, the Employees’ Compensation Act came into force and replaced the Workmen’s Compensation Act. One of the novel provisions of this Act was section 8 which provided for compensation for “mental stress as a result of a traumatic event in the workplace”. Being that sexual harassment could be very traumatic it then means that an employee who is subjected to such action may be able to claim compensation as long as the event happened in the course of work.
However, this created a new conundrum since it means that a complaint can only be filed under this heading if it occurs within the course of work. Students, it can be argued, are not workers or employees. It also meant that individuals who were not in formal work were excluded and so not covered by the Act.
The first mention of Sexual Harassment was in the third alteration to the Constitution of 2010. S254 (C) and (g). In delineating the jurisdiction of the NIC, the Constitution provides that the NIC shall have exclusive jurisdiction with respect to disputes, “relating or connected with any dispute arising from discrimination or sexual harassment in the workplace”
However, the Constitution did not define what constitutes sexual harassment or what constitutes the workplace.
In 2015 the Violence Against Persons Act was passed. The Act seeks to eliminate violence in private and public life, prohibit all forms of violence against persons, and provide maximum protection and effective remedies for victims and punishment of offenders, and for related matters. The downside of this was that violence has to be involved for the statute to kick in.
In 2017 the NIC came up with the latest National Industrial Court (Civil Procedure) Rules pursuant to the powers vested in it by virtue of section 12 of the NIC Act 2006. The Rules in Order 14 (1) had set out what constitutes sexual harassment at the workplace and this includes:
– Physical conduct of a sexual nature: unwanted physical contact, sexual assault, and rape;
-A verbal form of sexual harassment sexual innuendos, comments, etc;
-Non-verbal forms of sexual harassment: indecent exposure, display of sexually explicit pictures, etc; and
-Quid pro Quo sexual harassment: exchange for marks, employment or promotion, etc.
These are indicators that a complainant must specifically plead in order to sustain a claim of sexual harassment. In setting these parameters, the NIC adopted international best practices from other climes.
It must be pointed out that during this period, prior to 2017, the NIC being very proactive delivered some very interesting decisions with respect to sexual harassment. The most significant of such cases was the decision in Ejieke Maduaka Vs. Microsoft Limited wherein the NIC applied CEDAW and the ILO convention (employment and workplace) Discrimination Convention 1958. Both conventions had been ratified by Nigeria and in line with constitutional provisions, the NIC could apply ratified constitutions as local statutes without the need for domestication via the National Assembly as long as it relates or is connected to employment. Moreover, it concluded that the termination of the applicant’s employment, simply because she refused to succumb to sexual harassment from the Country Manager constituted a violation of human dignity and freedom from discrimination as protected by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.
On the basis of the above the NIC ruled in favour of the complainant in that she was sexually harassed and discriminated against and awarded damages of over 70 million Naira. Another landmark case within this period is Pastor Patricia Yakubu Vs. Financial Reporting Council of Nigeria SUIT NO: NIC/LA/673/2013. In this case, the NIC awarded damages as well as exemplary damages whilst ordering the reinstatement of the employee.
The Constitution and the conventions mention sexual harassment in the workplace presuming a relationship between employer and employee so what happens to nonemployment relationships like an apprenticeship or teacher-student relationship?

iii. Legal Framework November 2022 – till date: On the 27th of November 2022, the Nigerian Government submitted its articles of ratification of Convention 190 on violence and harassment in the workplace. By this, the convention will become part of Nigerian Local statutes in line with constitutional provisions without the need for domestication via the National Assembly. This will become effective 12 months from November 2022 in line with ILO provisions but in the meantime, the NIC can and will apply it as international best practice.
The current legal framework is one holistic legislation that if implemented properly, will to a large extent help turn the tide of sexual harassment in Nigeria. One very important aspect of the new legal framework is that for the first time, there is a clear definition of the term “Sexual Harassment”
“a range of unacceptable behaviours and practices or threats, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm and includes gender-based violence and harassment. Further, the Convention defines gender-based violence and harassment as violence and harassment directed at persons because of their sex or gender or affecting persons of a particular sex or gender disappropriately.”

In terms of scope, the new legal framework covers and seeks to protect workers and other persons in the “world of work”, as opposed to the previous narrow prism of “workplace,” including employees as defined by national law and practise as well as persons working regardless of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, job seekers, and job applicants, and individuals exercising the authority, duties or responsibilities of an employer. The convention applies to both the private and public sectors with equal measure and the informal and formal sectors in the rural and urban areas.
Also, the concept of the workplace has been extended to include social events or training outside of the physical office but related to work and will thus include commuting to work, using official cars, or where the office provides staff buses.
What has become clear is that organisations now have a duty to provide a physically and psychologically safe place of work.

What do organisations need to do?
At the minimum, organisations must have a policy in place. Such a policy must have an internal reporting and redress mechanism. Organisations will have to carry out sensitization training for their employees and contractors on the policy as well as special training for those in authority because of the issue of balance of power.

Recommendations
Self-regulation: Organisations will have to develop a checklist of acts or conducts that are not acceptable and must begin to self-regulate at the shop level or at the sectoral level.
The Nigerian Bar Association has taken the lead in this by developing its own sexual harassment policy as well as guidance notes. A good example of best practice is the University of Lagos which developed and implemented its sexual harassment policy as far back as 2017.
Training and re-training: It is important that organisations as a matter of practice, begin to carry out compliance and awareness training across the workplace. Organisations may also in dealing with vendors insist that they attend such training and part of the documents they should have in place in their organization is a sexual harassment policy.

Sexual offenders list akin to Lagos state: From a government point of view, it may be that there is merit in creating a sex offender register akin to what exists in Lagos state.

What Institutions of higher learning can do and should be doing
i. All incoming students must complete an ‘Appropriate Behaviour and Sexual Harassment training as part of their induction or it could be included as a module in the GS class
ii. Improving or creating new incident reporting processes and support options for students eg online reporting tools to protect the identity and reduce the fear of retribution
iii. Provide training for staff, students, and student leaders (for example, training on handling disclosure, on sexual consent, witness or third-party interventions)
iv. Awareness drive activities, for instance, organizing a sexual violence awareness week, producing posters, videos, website and mobile app content
v. Connecting and liaising with other local specialist support groups like NGOs eg Mirabel Centre for sexual assault, STER Nigeria

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Ose Okpeku is a Partner at The Law Crest LLP, where he heads the employment law, HR and immigration practice team.