Is it possible for a third party to report sexual harassment? complaint?

My wife recently informed me that she is being sexually harassed at the office. The perpetrator sits in senior management.

I am currently unemployed, and my wife is afraid that if she files a complaint, we might lose our only source of income.

How do I report this issue on her behalf? I don't care about the job, I think the pervert boss should be jailed because even if my wife quits, he will simply prey on another victim.

Please advise on how to approach this issue tactfully.

 Dear concerned husband,

The prescribed minimum of three years in prison, or a fine of Kenya shillings 100,000 or both, as provided in Section 21 (1) of the Sexual Offenses Act is not enough for sex predators, but there is a process to be followed.

Human Rights and attendant laws promote and protect the dignity of people, irrespective of their station of life as stated in Article 28 of the Kenyan Constitution.

It is inconceivable, that one can be made to choose their job over family.

Your wife and anybody else for that matter, must never be subjected to or become subject to such circumstances where their job or families are put on the chopping board to save a powerful sexual pervert at the workplace.

Sexual harassment, whether between or across genders, is willed, deliberated, formed and planned in the mind of a perpetrator.

It is intentionally executed in a binary that conflicts with a perpetrator’s power and a survivor’s powerlessness.

Sexual harassment is a difficult subject, and the experiences are nasty, dehumanising, barbaric and primitive.

In fact, society should be grateful for courageous individuals and couples like you, who find urgency, commitment and solidarity to deal with sexual and gender-motivated violence in their diverse private and public spaces.

Employment Act

The Employment Act recognises actions that encapsulate sexual harassment are often executed in hidden or less open spaces and bestows employers the responsibility to design and implement mechanisms that equally protect their employees from every form of discrimination, torture and intimidation in the realm of violence.

An allegation of sexual harassment must first conform to the general definition provided in Section 23 (1) of the Sexual Offences Act (2006), and made specific to workplaces, by Section 6 (1) of the Employment Act, stating that it is the instance where an employer, a representative of that employer or a co-worker directly or indirectly requests an employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express promise of preferential treatment in employment, a threat of detrimental treatment in employment or a threat about the present or future employment status of the employee.

It further states that sexual harassment at the workplace as the use of language whether written or spoken of a sexual nature, the use of visual material of a sexual nature or showing 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.

Evidence

The second and most important part of this remedial process is the collection of evidence.

Lest readers forget, sexual harassment is discreetly procured, yet the auxiliary language is coded with intent to intimidate, if not coated in negative consequential reward for those who resist advances.

Your wife as the survivor and originator of the allegations must have evidence or begin to collect.

It will be good to know whether she is able to access or secure CCTV camera footage.

In line with Section 6 (2) of the Employment Act, you need to ascertain if her employer has a functional safeguarding policy, which overall addresses the power imbalance and its impact between different genders and cadres.

Such policy or code of conduct is to prohibit acts of violence amongst other abuses, and not inhibit free communication and reporting.

Fourthly, without dislodging the aspect of evidence in mind, is to confirm that her employer has safeguarding support structures, including a designated officer who receives and processes reports.

It is advisable, with all risks considered including the possibility of losing their job, for her to exhaust the internal procedures.

This serves to reduce likely allegations of malice, but importantly to record the action of the employer.

She needs to put this matter into a formally recognised process, by either writing a letter of notification or an email to senior management concerned with human resources.

Given this, the senior management should trigger investigations and consequential action to mitigate the situation.

However, should something adverse happen, such as termination or action taken fails to meet justice in your eyes, then she is at liberty to move the Employment and Labour Court, which has pronounced itself severally on such matters.

The court found guilty the employer for having failed to expeditiously and impartially investigate the sexual harassment claim as required by the company’s internal procedure in the case of SRM v GSS (K) Limited and Another.

Survivors of sexual harassment have refuge in the law. Article 27 of the Constitution provides equality before the law, and Article 29 protects every person not to have their physical security tampered with.

Eric Mukoya has over 17 years of experience working in the social justice sector. He’s the executive director of the Undugu Society of Kenya. Legal query? Email [email protected]