#MeToo: A Kenyan Perspective on Sexual Harassment in the Workplace
1. Background
It all started with a tweet from actor Alyssa Milano on 15 October 2017[1], and the #MeToo movement against sexual harassment and assault was coined.[2] The internet was flooded with personal stories of the victims of sexual harassment or assault throughout the world, piercing the veil of silence that the topic had been safely tucked under.
In Kenya, the #MeToo movement has not picked up with the same pace as the rest of the developed world, mainly because it was overshadowed by the then upcoming 2017 presidential elections and the turbulent aftermath of two trips to the ballot box. The movement also failed to gain traction locally because speaking out about sexual assault and harassment is widely considered a taboo. Sexual harassment allegations are often hushed, more so if the allegation implicates a high profile personality. There has, however, been an increase of victims speaking out about sexual harassment in the recent past.
This article sets out (i) the legislative framework that has been developed to counter sexual harassment, (ii) an employer’s obligations on providing a harassment-free environment and (iii) the localisation of the #MeToo trend in Kenya.
2 Kenyan legislative framework developed to counter sexual harassment
2.1 Constitution of Kenya
The Constitution of Kenya guarantees rights and freedoms of every person in Kenya including the right to fair labour practices, the right to freedom and security of the person, the right to human dignity and freedom from discrimination.
In the event an employee claims that he/she was sexually assaulted, the employee can institute court proceedings claiming that any of the above rights have been denied, violated, infringed or threatened. In the event the claim is successful, the court has the power to order for just compensation to be paid to the victim or order for judicial review in the event due process when handling a sexual harassment allegation was not followed.
2.2 Sexual Offences Act
Under the Sexual Offences Act (the Act), a person may be found guilty of sexual harassment if any person, who being in a position of authority, or holding a public office, persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome. The penalty of the offence is imprisonment for a term of not less than three years or a fine of not less than KES 100,000 (approx. USD 1,000) or both.
The Act, however, imposes an obligation on the alleged victim of sexual harassment to prove:
(a) that their submission or rejection of the sexual advances or requests would be used as a basis of employment or as a decision relevant to the career of the alleged victim; and
(b) that the sexual advances or requests by the perpetrator have the effect of interfering with the alleged victim’s work; educational performance or have created an offensive working or learning environment for the alleged victim.
It follows that a key ingredient to proving or disproving a sexual harassment allegation is determining whether the advances were welcomed. Lack of consent by the alleged victim is, therefore, a critical element of sexual harassment. Consent means a person agrees by choice and has the freedom and capacity to make that choice.
2.3 Employment Act
Section 6 of the Employment Act defines sexual harassment as where an employer or a representative of the employer or a co-worker:
(a) directly or indirectly requests an employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express (i) promise of preferential treatment in employment; (ii) threat of detrimental treatment in employment; or (iii) threat about the present or future employment status of the employee;
(b) uses language whether written or spoken of a sexual nature;
(c) uses visual material of a sexual nature; or
(d) shows physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
In addition, the Employment Act requires that an employer with twenty or more employees must, after consulting with the employees or their representatives if any, issue a policy statement on sexual harassment. The policy should include: a definition of sexual harassment; a statement that every employee is entitled to employment that is free of sexual harassment; a statement that the employer shall take steps to ensure that no employee is subjected to sexual harassment; and a statement that the employer shall take disciplinary measures as they deem appropriate against any person who subjects any employee to sexual harassment.
In addition to having a sexual harassment policy, the employer must ensure that the policy is implemented. Employers should, therefore, train their employees on the parameters of the policy.
2.4 Case Law
Following the changes in the law, there have been several decisions from the Kenyan courts.
In the case of CAS v CS Ltd[3], the employee disclosed that she was constantly sexually harassed by various staff members, including some who were in management. The employee further explained that the lack of a sexual harassment policy by the employer added to her frustration and harassment. The court found the employer guilty of failing to have a sexual harassment policy in violation of section 6 of the Employment Act.
Another issue that was canvassed in the case was the employee’s unfair termination stemming from the lodging of the sexual harassment complaint. After making her complaint, the employee was issued with a show-cause letter and later dismissed. The judge held that the reasons given for dismissing the employee were not valid given that she was dismissed for seeking help at the employer’s head office. In this matter, the court found that the employee had been summarily dismissed and awarded her a compensation of approximately USD 4,000.
Similarly, in the case of SRM v GSS (K) Limited & another[4], the employee disclosed that she was being sexually harassed by an employee in top management. She was dismissed after making her complaint. The court found the employer guilty of failing or ignoring to investigate the claim expeditiously and impartially as required by the company’s internal procedures. It was outlined in the business ethics policy, that when an allegation of sexual harassment is made, the same should be raised with the employer’s Human Resource Manager who would arrange for the claim to be investigated impartially, confidentially and without delay. The court held that the process outlined within the business ethics policy was not followed by the employer. In this matter, the court found that the employee had been unfairly dismissed and awarded her compensation of approximately USD 60,000.
3. Localisation of the #MeToo movement in Kenya
While Kenya has developed a robust legislative framework, the advancement of handling sexual harassment cases has been slow due to a host of factors such as corrupt practices, socio-cultural practices and slow investigation processes. This has led to the localisation of the #MeToo movement. In January 2018 for example, several new mothers admitted in the Kenyatta National Hospital alleged sexual misconduct by the hospital staff through a Facebook group named “Buyer beware”. There were also allegations that children in the hospital had been sexually assaulted. The hospital dismissed all the claims, which led to a day-long protest in the streets of Nairobi. The Ministry of Health ordered a probe into the allegations and although criminal investigations were initiated, it did not lead to any convictions.
As illustrated above, employers in Kenya have the responsibility of creating a harassment-free environment that protects employees. To avoid being caught up by sexual harassment issues in the workplace, employers should be able to not only follow the legal provisions but also strive to provide a support mechanism where they can freely table allegations without fear of reprisal.
For instance, an employer can set up an anonymous call line or email address where sexual harassment allegations can be initially reported or the employer can hire an independent third party to handle such matters. In order to deal with workplace romances, the employer can implement a policy which makes it mandatory for all consensual relationships between employees to be formally recognised in a consensual relationship agreement signed by both employees and management. If handled properly, a consensual relationship agreement will make it more difficult for an employee to claim that the relationship was “unwelcome” and minimise any claims of sexual harassment associated with workplace romances.
Should you have any questions regarding the information in this legal alert or any other employment matters, please do not hesitate to contact Sonal Sejpal or Rosa Nduati-Mutero.
The content of this alert is intended to be of general use only and should not be relied upon without seeking specific legal advice on any matter.
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Footnotes
[1] https://twitter.com/alyssa_milano/status/919659438700670976?lang=en
[2] https://www.nbcnews.com/storyline/sexual-misconduct/metoo-hashtag-becomes-anti-sexual-harassment-assault-rallying-cry-n810986
[3] CAS v CS Ltd [2016] eKLR
[4] SRM v GSS (K) Limited & another [2017] eKLR