Justice begins at home: Strengthen Judiciary's Sexual Harassment Policy
Sexual harassment is prevalent in workplaces.
What you need to know:
- Judiciary’s sexual harassment rules need updating to protect victims, alleged perpetrators and confidential complaint data.
- Policy gaps could expose complainants to further harm while denying alleged perpetrators clear procedural and legal protections.
“Stop sexual harassment. Respect boundaries. Uphold dignity”. These are the statements that hit you on opening the Standard Operating Procedures for Sexual Harassment Policy (Sops) approved on December 23, 2025.
This document seeks to translate into action the Judicial Service Commission Sexual Harassment Policy for the Judiciary, 2021, which declares the behaviour intolerable because it is criminal and breaches the Constitution and various statutes. The policy is anchored on zero tolerance, awareness creation, reporting, standards of conduct and a conflict resolution procedure.
While the policy is a step in the right direction, its content should be revised to align with current reality. For instance, it states that sexual harassment “may occur between persons of the opposite or same sex”. This phrasing assumes that there are only two sexes, yet Kenya has acknowledged intersex persons as another biological category, hence the text should be revised to “same or other sex”.
The requirement by the policy that complaints “shall be in writing using the prescribed form” is a legacy procedure, which assigns more premium to literacy over other means of reporting and recording, making it essentially exclusionary. But in other parts, this is remedied by allowing verbal and in-person reports. Curiously, the policy gives only the complainant the option of asking for the matter to be resolved informally, while Sops provide for the perpetrator as well to initiate such an action. These instances suggest the need to harmonise the two documents.
Part 6.5(f) of the policy states that “when it has been determined that sexual harassment has occurred, steps must be taken to ensure that the harassment has been stopped immediately.” This technically means that the harassment can go on between the time it is reported and conclusion of investigations, exposing the alleged victim to further harm. The desired immediacy can be achieved by notifying the alleged perpetrator of the accusation as soon as it is received and specifying the need to cease any form of contact with the complainant henceforth.
Part 10.5 of the policy is a weak provision. It states that “sanctions may be imposed” on people who make false accusations. The word “may” suggests that imposition of sanctions will be discretionary, which is fine. But that requires a listing of the grounds on which the same can be exercised. Not doing so portends for injustice to the falsely accused person and displays some intrinsic reluctance on the matter.
Read: Power, robes and quiet corridors: Sexual harassment claims force Kenya’s lawyers into a reckoning
Another omission is that the policy lists the rights of the victim but not those of the alleged perpetrator, giving the inaccurate impression that the latter has none. Just like the victim, the alleged perpetrator has rights to full information, speedy and objective investigation, channel to be heard, confidentiality, respect, legal presentation, due process and psychosocial assistance.
In Section 14, the policy requires establishment of a complaints register. But the section does not go ahead to provide for safeguarding of the data. Again, the Sops remedy this by providing for “secure, restricted files and digital storage”. This provision should be updated in both documents with explicit reference to the Data Protection Act, 2019, currently not mentioned.
The documents do not directly envisage a situation where the Chief Justice is either the alleged perpetrator or victim, as there is no provision on how such a case would be handled since the responsibility to investigate lies with the Employee Protection Unit, which is subordinate to the Chief Justice and would, therefore, not be a logical entry point.
While the policy leaves it to the imagination that such a case would be reported directly to the Judicial Service Commission, the same should be categorically stated. It may sound far-fetched but is quite within the realm of possibility, going by cases of high-ranking officials who have faced such accusations in countries such as India, Bangladesh and the USA. There is no reason to believe that such may not happen in Kenya.
The step taken to put in place these protective measures illustrates that even protectors need to be protected and the responsiveness of the current leadership to felt needs. The problem of sexual harassment is captured in the Judiciary Employee and Work Environment Satisfaction Survey Report (2025), which established that 65 per cent of staff were satisfied with existing measures, and 95 per cent reporting not having been exposed to the vice.
However, 15 per cent were dissatisfied, hence indicating the need for improvement in some respects, identified as “continued vigilance, capacity-building for reporting and response systems, and reinforcement of preventive measures”. As the Judiciary takes the necessary action to address the gaps, it should take advantage of the annual review cycle to edit, harmonise and update Sops and the parent policy document.
The writer is a lecturer in Gender and Development Studies at South Eastern Kenya ([email protected]).
