TAKING ACTION ON SEXUAL HARASSMENT: WHAT IS MISSING?

TOPIC: TAKING ACTION ON SEXUAL HARASSMENT: WHAT IS MISSING? Date: Tuesday, 27 th March 2018 Venue: Alliance Francaise – Wangari Maathai Auditorium Time: 4.00 pm to 6.30 pm   Discussion Panel:

  • Njoki Ngumi – The Nest Collective
  • Doreen Ireri – Lawyer
  • Wangu Kanja – Wangu Kanja Foundation
  • Rachael Muthoga – Deputy CEO KEPSA
  • Philip Otieno – Men For Gender Equality Now

Moderator: Victoria Rubadiri – NTV Anchor/Reporter

 BACKGROUND

Sexual harassment and assault have been high-profile topics in the recent months nationally and also internationally. According to a study conducted by the International Labour Organisation (ILO),”Sexual harassment is inextricably linked with power and often takes place in societies which treat women as sex objects and second-class citizens.” A common example is when women are asked for sexual favours in return for a job, a promotion, or a raise ‘Quid Pro Quo harassment’. Importantly, sexual harassment is not the same as a mutually-agreed flirtation or relationship. It is an unwelcome action, causes offense and distress, and can in some situations, be physically and emotionally draining to the victim. The victim can feel intimidated, uncomfortable, embarrassed, or threatened. Section 42 of the Sexual Offences Act in Kenya defines consent in the circumstance as a situation where a person agrees by choice, and has the freedom and capacity to make that choice. Sexual harassment in Kenya is often portrayed as murky or ambiguous in legislation, on the grounds that it’s hard to tell the difference between a bit of banter and a humiliating remark. It is often viewed from the workplace standpoint and as such is defined in section 6 of the Employment Act, 2007 as a situation where: A person directly or indirectly requests for sexual activity from another, usually a subordinate, with an express or implied promise of preferential treatment (e.g. higher salary, promotion). A threat of adverse consequences (such as being fired, a poor performance review). Sexual harassment can also take the form of unwelcome or offensive behavior of a sexual nature Use of language or visual material which makes the subject uncomfortable (sending texts, nude photos, porn). Section 23 of the Sexual Offences Act, 2006 goes further to criminalize it. Sadly, this provision only applies to public officers and persons in position of authority. Some form of sexual harassment may be classified as indecent acts; whereby an indecent act is defined as any contact with the genital organs, breasts or buttocks of another but without penetration (this includes groping, spanking and such acts), or exposure or display of any pornographic material to any person against their will (for example forwards of nudes, suggestive texts). With this background, the notable increase in cases of and the evolution of sexual harassment which now includes cyber/ online harassment, the gender forum will seek to converse on what more can be done and how the shift of narrative from the issue being a purely law and order problem can help reshape the subsequent conversations.

KEY DISCUSSION POINTS:

How to define sexual harassment and what entails the sufficient grounds for reporting?

According to Ms. Ireri, the law as it is has a pretty limited definition of sexual harassment and as seen before, it mainly focuses on sexual harassment in formal employment set ups. In section 6 of the Employment Act, 2007 as a situation where: A person directly or indirectly requests for sexual activity from another, usually a subordinate, with an express or implied promise of preferential treatment (e.g. higher salary, promotion). A threat of adverse consequences (such as being fired, a poor performance review). Sexual harassment can also take the form of unwelcome or offensive behavior of a sexual nature Use of language or visual material which makes the subject uncomfortable (sending texts, nude photos, porn). The reality is, sexual harassment is something we interact with daily e.g. when the conductor ‘accidentally’ grabs your bum when boarding a matatu, when the doctor gets turned on while examing you, when walking on the streets and a random stranger colorfully lets you know how much he likes how your jeans fit etc. Dr. Njoki noticed that our society is one where sexual harassment has become commonplace. In fact, when one complains about feeling uncomfortable about certain comments, are asked to relax ‘upendeke’ or they are told it was a joke and not to take it so seriously. Feedback like these creates grey areas because then victims are left wondering when they have been sufficiently sexually harassed for others to take their complaints seriously. Dr. Njoki further commented that it is only in sexual harassment cases that the victim is expected to defend her morals because in these cases the perpetrators’ lawyers seek to dig out every profanity the victim has ever used, every ‘suggestive’ attire the victim has ever donned etc. All these tend to dissuade victims from speaking out because more often than not they feel exposed and shamed. How then do we as a society protect victims and whistleblowers from blowback of speaking out especially when the perpetrator yields quite some clout?

How to identify sexual harassment; what is the difference between a bit of banter and a humiliating remark?

Save for the definition by the law, workplaces need to hold constant meetings to discuss sexual harassment because the constant awareness creation will help clear the grey areas on what sexual harassment is and what it is not , according to Ms. Muthoga. Dr. Njoki is convinced that as human beings we generally are equipped to decipher social cues according to how we are socialized. Therefore, it is quite unrealistic to think that people can generally not tell the difference between offensive remarks and banter yet these same people can read into when not to push a client to far, when someone they care about is upset or uncomfortable etc. The panel agreed that as a society we should stop infantilizing perpetrators and making excuses for them that maybe the victims did not sufficiently express their discomfort.

What is missing in the various frameworks that aim to curb sexual harassment in the country?

  • A safe space for whistleblowers and victims to speak out
  • A supportive reporting procedure that doesn’t protect the perpetrators by sweeping things under the rug
  • Awareness on private space and boundaries
  • Awareness on where to report sexual harassment that occurs in public places such as matatus, the streets etc.

What are the prosecutorial challenges with relation to sexual harassment?

  • The burden of proof lies with the victim
  • There are way too many grey areas so evidence (especially electronic evidence) does not always hold up in court

According to Mr. Otieno, the following are some ways that we can reduce sexual harassment:

  • Engage more men in issues of power and sexual harassment i.e. make it a commonplace conversation among men
  • Engage institutions that shape men’s behavior as they give men they support they need in changing behavior
  • Engaging men in decision making positions in making policies that end sexual harassment by holding trainings and awareness creation

Ms. Muthoga is of the thought that we should have alternative ways to deal with sexual harassment at the workplace. These include:

  • Loss of power for the perpetrator e.g. firing, demotion
  • Investment in the healing of the victim e.g. paid time off, paying for their counseling. job protection , emotional support at the workplace etc.
  • Conscious choices as a society, organization, individual etc to do better and better
  • Planning in advance by putting in measures on how to deal with victims and perpetrators should a sexual harassment case arise within the organization.