The Labour CS underscored the government’s commitment to ensuring safe and fair workplaces, stating that this unit would play a crucial role in supporting victims and enforcing justice.
The government, through Cabinet Secretary for Labour and Social Protection, Dr Alfred Mutua, announced on Monday, September 16 that it had set up a new unit to address issues of sexual harassment in the workplace.
Speaking at the University of Nairobi during the annual symposium of the Employment and Labour Relations Court, Dr Mutua emphasized that the unit, set to be domiciled within his ministry, will provide a platform for victims of sexual harassment who feel their concerns have not been adequately addressed.
The symposium, which focused on the theme “The Role of the Employment and Labour Relations Court in Fostering the Right to a World of Work Free from Violence and Harassment, Including Gender-Based Violence and Harassment,” provided an apt setting for the announcement.
The Labour CS underscored the government’s commitment to ensuring safe and fair workplaces, stating that this unit would play a crucial role in supporting victims and enforcing justice.
Labour Cabinet Secretary Alfred Mutua during a meeting with KICC board members on February 8, 2024. /ALFRED MUTUA
Dr. Mutua also pledged to push for the ratification of the International Labour Organization (ILO) Convention 190, which focuses on the protection of workers against violence and harassment.
Furthermore, he stressed that his ministry is dedicated to establishing systems that promote fairness for both employees and employers.
“It’s important that employers provide safe working environments, but conversely, workers must also ensure they are productive,” he noted, adding “Employees are not slaves to be treated inhumanely, and in the same breath, employers are not aiding missionaries.”
The CS called for fairness and prudence in the decisions rendered by the labour court, highlighting the significant impact of these rulings on economic growth and investor confidence.
Additionally, he urged the court to maintain impartiality in all its judgments, advocating for respect in the workplace irrespective of gender, disability, or position.
Dr Mutua also spoke against romantic relationships in the workplace, particularly those involving power imbalances, such as relationships between superiors and their subordinates, and emphasized the need for alternative dispute resolution methods to be enhanced to allow the courts to handle more pressing and complex cases.
Sexual harassment is a major issue affecting many people in the workplace. It applies to both men and women, though men hardly talk about their woes of being sexually abused in workplaces out of fear of stigmatization.
The vice doesn’t have to involve sexual behaviour. It can also consist of inappropriate jokes and comments or displays of sexually explicit materials. It also does not have to involve a supervisor as it can be anyone in the office, and the harasser doesn’t have to be someone of the opposite sex.
Sexual Harassment in Kenyan Law
In accordance with the declaration of international protection and worker rights, the Constitution of Kenya holds a clause under Article 27, which on the first level prohibits any and all kinds of discrimination in the workplace. It protects every employee working in Kenya from abuse/discrimination from the employer and rights violations.
This section exists in line with the fundamental constitutional right of every Kenyan- every citizen is equal before the law and has the right to equal protection and benefit from the law. Although section 27 doesn’t explicitly mention sexual harassment and punitive measures against such an offence, it forms the basis of workplace rights protection laws.
Section 23(1) of the Sexual Offences Act, No.3 of 2006, defines sexual harassment as “continuous unwelcome sexual advances, request for sexual favours, lewd verbal or physical gestures by someone in authority.”
It goes on to discuss the victim’s response to inappropriate moves will also be used in the legal proceedings later on. If an employee gives into their superior’s perverted demands to save their job, which resultantly creates an uneasy and offending work environment for them, the system will consider it.
Section 6(1) of the Kenyan Employment Act describes sexual harassment as any instance in which a superior or co-worker asks an employee for a sexual favour, such as having intercourse, signing a sexual contract, or engaging in any sexual activity in return for better growth opportunities or favouritism among other employees. Moreover, the use of improper, suggestive language, written or verbal, is also classified as sexual harassment according to the Kenyan Employment Act.
Sub-clause two of the same section mandates every company with 20 or more employees to make and implement a foolproof punishment plan for perpetrators of sexual harassment. Firms also are to clearly state the definition of sexual harassment as defined by Kenyan law in their bill to remove all ambiguities in case of an incident.
The law of Kenya decrees no less than three years of imprisonment or payment of Ksh100,000 or more as a fine for anyone declared a sexual offender. Be it a verbal or physical form of indecent behaviour by a person in authority; the act will be punishable if the alleged perpetrator is proven guilty.
