Why Kenya’s workplace sexual harassment laws are failing employees
The Employment Act 2007 requires all organisations that employ more than 20 staff to have a Sexual Harassment Policy.
What you need to know:
- Despite legal protections, workplace sexual harassment remains deeply entrenched, exposing weaknesses in enforcement and accountability systems.
- Women continue bearing the greatest burden of workplace harassment as organisations struggle to implement protective measures.
At the National Conference on Workplace Protection held at the Kenya School of Government (KSG) in Nairobi from May 25 to 26, sexual harassment was recognised as a major occupational problem. The Prevalence of Workplace Violence in Public Sector Institutions in Kenya, a studyby KSG, reveals that more women than men are exposed in county governments and at the national level.
The vice mainly takes the forms of unwanted sexual advances (30.7 per cent females, 12.3 per cent males), unwelcome requests for dates or sexual favours (24.3 per cent females, 6.5 per cent males) and inappropriate touching, sexual gestures and staring (19.5 per centfemales, 8.2 per cent males).
Specifically, “women feel that they have to succumb to the ‘quid pro quo’ type to rise,” while men complained that women used “bottom power” to gain favour and take away positions they were “sometimes more qualified for”. Men also complained that the way some women dressed invited sexual harassment. Most respondents lamented that it was unlikely for complaints to be acted upon as the main perpetrators were senior people that human resources officers typically fear to investigate.
The good news is that workplace sexual harassment is prohibited by the Employment Act, 2007, and Sexual Offences Act, 2006. The former categorically requires all employers with at least 20 employees to have anti-sexual harassment policies. The bad news is that compliance is doubtable. As the study established, “when asked if their organisations had policies against sexual harassment, some said they were not aware, while others said there were none”.
Reports that the policies are non-existent in some organisations, two decades after enactment of the law, is a testament to phenomenal impunity. Worse is that no one has been held accountable, meaning the law is treated as a mere compendium of dispensable words. This is not surprising given that the Act does not specify penalties for non-compliance, although such coercive measures often lead to action in order to avoid punishment rather than to improve the workplace.
Even worse is that the definition of sexual harassment in the Employment Act is parochial. The Act states that an employee is “sexually harassed if the employer or a representative or a co-worker: (a) directly or indirectly requests for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express: (i) promise of preferential treatment; (ii) threat of detrimental treatment; or (iii) threat about the present or future employment; (b) uses language ... of a sexual nature; or (c) visual material of a sexual nature; or (d) shows physical behaviour of a sexual nature which … is unwelcome or offensive… and that by its nature has a detrimental effect”.
The first part of this definition assumes that sexual harassment moves in one direction – from superiors to subordinates – and only among workplace colleagues. Wrong. Subordinates also sexually harass their seniors and there are workplace third parties that can harass and be targeted too. The provision about 20 employees suggests that it is numbers that determine occurrence of sexual harassment. Technically, it is saying that below 20, there are no culpabilities and no redress. A workshop participant observed that the Act did not anticipate technology. Thus, sexual harassment through mechanisms such as “view once” in cell phones can be perpetrated without any trace.
Another issue is the circumvention of the Employment Act by public sector entities that consider themselves covered by the law itself and service codes of conduct. The law could not possibly prescribe a policy if it considered itself one. Moreover, codes of conduct may not capture all the ingredients prescribed by the Act, namely a definition of sexual harassment and statements protecting every employee, obliging the employer to take preventive steps, outlining disciplinary measures, explaining handling procedures and mandating staff awareness.
The problem of duplication was also identified– that the subject is covered in various statutes all with different definitions and procedures. The conference noted that no case of sexual harassment has been adjudicated using the Sexual Offences Act. This points to three things: the offence is superfluous in this statute, public perception is that sexual harassment only occurs in workplaces, it is not understood and people are apathetic to seeking legal redress.
Hopefully, these lacunae will be addressed during debates on the Employment (Amendment) Bill 2025 currently in the National Assembly. Promising provisions in this bill are mandatory internal reporting systems, requirement that complaints be handled by trained human resources officers, annual staff training,maintenance of a detailed complaint register and submission of quarterly reports to the Ministry of Labour.
These good intentions may, however, be neutralised by the tendency of leaders in organisations to deny existence of the behaviour, yet employees point to its endemic prevalence.
The writer is a lecturer in Gender and Development Studies at South Eastern Kenya University ([email protected]).
