Nigeria has several laws and sexual harassment is not without a legal framework, even as there are several agitations for a more robust legal framework and punishment for sexual harassment. The greatest of all laws in Nigeria is the Constitution of Nigeria. After the constitution comes other federal laws and then the laws made by state legislatures. Issues of sexual violence are not within the exclusive preserve of the federal government; rather state governments make several state laws on the issue. There are also several international instruments on the issue and Nigeria as ratified some of them. The court in Nigeria are working tirelessly to reduce the surge in sexual offences and the National Industrial Courts been applauded for its innovations on the workplace sexual harassment through its judgments and rules of court. All these make up the legal framework of workplace sexual harassment in Nigeria.
Section 34 of the Constitution of Federal Republic of Nigeria, 1999.
Every individual is entitled to respect for the dignity of his person, and accordingly –
(a) no person shall be subject to torture or to inhuman or degrading treatment;
(b) no person shall he held in slavery or servitude; and
(c) no person shall be required to perform forced of compulsory labour.
The Constitution of the Federal Republic of Nigeria contains the fundamental human rights of all persons in Nigeria.
The fundamental human rights are sacred and must be respected by all persons. In most cases of sexual harassment, the fundamental human rights of victims are threatened and violated. Specifically, the right to dignity of human person (Section 34) and the right to freedom from discrimination (Section 42).
The list of fundamental human rights that may be violated by sexual harassment is endless. This is the meeting point, where sexual harassment is also a violation of fundamental human rights and consequently a breach of the constitution of Nigeria. As expected, the constitution has adequate compensation for any violation of fundamental human rights and a clear procedure for seek enforcement. This is the first and the most powerful legal instrument in Nigeria that directly or indirectly condemns sexual harassment and other forms of sexual violence.
The National Industrial Court (NIC) has affirmed this position in the case of Ejike Maduka vs Microsoft, stating that sexual harassment in workplace) could be gender-based discrimination and an abuse of right to dignity of human person. (Source: Adekunle Obele, Joseph Onele and Ozioma Agu, “Curbing Sexual Harassment: Lessons From Microsoft”.
Aside the Constitution of Nigeria, there are several other laws made by state legislatures for their states and those made by the federal legislature for the Federal Capital Territory, focusing on sexual harassment.
Section 351: Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for one year.
Section 352: Any person who assaults another with intent to have carnal knowledge of him or her against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years.
Section 360: Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour and is liable to imprisonment for two years.
The criminal code is applicable in the southern part of Nigeria and it contains provisions criminalizing the offence of sexual harassment. The criminal code contains provisions on sexual harassment that can be found in sections 351to 361 of the Act. It has varying punishments for sexual harassment, generally.
For more information: Onyekachi Umah, “An Access To Criminal Laws In Nigeria”
Section 281: Whoever, in order to gratify the passions of another person, procures, entices, or leads away, even with her consent, a woman or girl for immoral purposes shall be punished with imprisonment which may extend to seven years and shall also be liable to fine.
Section 285: Whoever commits an act of gross indecency upon the person of another without his consent or by the use of force or threats compels a person to join with him in the commission of that act, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. Provided that a consent given by a person below the age of sixteen years to such an act when done by his teacher, guardian or a person entrusted with his care or education shall not be deemed to be a consent within the meaning of this section.
Like the Criminal code, the penal code is applicable in the northern part of Nigeria. The penal code refers to sexual harassment as indecent assault and has provisions for the offence in sections 281, 282 and 285 of the Penal Code.
Although, state criminal laws were majorly drawn from regional criminal codes, with the Criminal Code of 1916 covering states in southern part of Nigeria and the Penal Code of 1960 covering the states in Northern part of Nigeria, some states have gone further to enact their own unique laws.
This has offered the states rare opportunities to amend and update their laws. Worthy of note are Kano State from Northern Nigeria (with its “Kaduna State Penal Code Law, 2017”) and Lagos State from Southern Nigeria(with its “Criminal Law of Lagos State, 2011”) clearly provide, define, and criminalize sexual harassment with severe punishments.
Kaduna State Penal Code Law, 2017
Section 262 (1): Sexual harassment is unwelcome sexual advances, requests for sexual favours, and other visual, verbal, or physical conduct of sexual nature which when submitted to or rejected:
- implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interferes with the person’s work or educational performance;
- implicitly or explicitly suggests that submission to or rejection of the conduct will be a factor in academic or employment decisions; or
- creates an intimidating, hostile or offensive earning or working environment.
Section 262 (2): Any person who sexually harasses another is guilty of an offence and shall be liable to imprisonment for a term of not less than Three Years or with fine of not less than One Hundred Thousand Naira or both.
Criminal Law of Lagos State, 2011
Section 264: (1) Any person who sexually harasses another commits a felony and is liable on conviction to imprisonment for three (3) years.
(2) Sexual harassment is unwelcome sexual advances, request for sexual favours, and other visual, verbal, or physical conduct of a sexual nature which when submitted to or rejected—
(a) implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interferes with the person’s work or educational performance;
(b) implicitly or explicitly suggests that submission to or rejection of the conduct will be a factor in academic or employment decisions; or
(c) creates an intimidating, hostile or offensive learning or working environment.
With the rise in sexual violence, many states in Nigeria including the federal capital territory have dedicated laws on Sexual and Gender-Based Violence (SGBV).
The various states laws criminalize sexual harassment with very stiff punishments. Lagos is the first state to have made a law focusing on protection of victims of SGBV. However, the federal legislatures surpassed this, when they made a very innovative anti-violence law for the Federal Capital Territory, Abuja. This has woken many state legislatures and caused many states to have SGBV laws, that condemn and criminalize sexual harassment.
The common SGBV laws and related laws are:
It is important to note that there are several state and federal government efforts to enact laws prohibiting sexual abuse and harassment in workplace and academic institutions, they are not yet laws. This includes the Sexual Harassment in Tertiary Education Institutions Prohibition Bill 2016 (The bill prohibits sexual harassment of students by educators in tertiary educational institutions).
The Lagos State Prohibition Against Domestic Violence Law 2007
Section 18: “Sexual abuse” means any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity, or dignity of the victim.
The Ekiti State Gender-Based Violence (Prohibition) Law 2019
Section 63: “sexual harassment” means unwanted conduct of a sexual nature or other conduct based on sex or gender which is persistent or serious and demeans, humiliates, or creates a hostile or intimidating environment and this may include physical, verbal, or non-verbal conduct; d
“‘Sexual intimidation” means –
(a) any action or circumstances which amount to demand for sexual intercourse with either a male or a female under any guise. as a condition for passing examination, securing employment, business patronage, obtaining any favour in any form, as defined in this law or any other enactment;
(b) the actual demand for sexual intercourse with either a male or female under any guise, as a condition for passing examination, securing employment, business patronage and or obtaining any favour in any form, as defined in this Law or any other enactment;
(c) acts of deprivation, withholding, replacing, or short-changing of entitlements, privileges, rights, benefits, examination or test marks or scores, and any other form of disposition capable of coercing any person to submit to sexual intercourse for the purpose of receiving reprieve thereto: or
(d) any other action or inaction construed as sexual intimidation or harassment under any other enactment in force in Nigeria.
The Violence Against Persons Prohibition Act, 2015 (VAPP Act)
Section 46: Sexual harassment means “unwanted conduct of a sexual nature or other conduct based on sex or gender which is persistent, serious and demeans, humiliates or creates a hostile or intimidating environment and this may include physical, verbal or non-verbal conduct.”
Nigeria has a special court (the National Industrial Court) for labour and employment matters and all other matters arising from employment. The court has in exercise of its constitutional powers made rules for its procedures and practice of law.
The National Industrial Court Civil Procedure Rules 2017 makes provision for sexual harassment, it states different kinds of acts and circumstances that can constitute sexual harassment in the workplace and recognizes that it is an offence for which a person can bring a claim in respect of to court. All this is contained in Order 14 of the Rules.
Yes, employers have the responsibility to protect employees from workplace sexual harassment.
The National Industrial court in the case of Ejike Maduka vs Microsoft:
It was stated that an employer can be held vicariously liable for the sexual harassment committed by its employees. There is a duty on employers to have a policy on sexual harassment and to investigate cases in line with the policy where they are reported:
“the inaction and silence of the 1st and 2nd Respondent, they both tolerated and ratified the 3rd respondent’s conduct which is against their policy of prohibition and non-tolerance of sexual harassment, gender discrimination and retaliatory action. I hold that they are both in breach of their duty of care and protection to the applicant and are vicariously liable for the acts of sexual harassment carried out by the 3rd respondent within the apparent scope of authority they entrusted to him.”
In courts of law, cases are determined based on facts and evidence presented in court. Hence, win a case and accessing justice starts with having enough evidence to substantiate a claim.
Moreover, the person that makes any claim or allegation in a court of law, is the person that must prove his/her allegations/claims. Establishing sexual harassment is a duty on the shoulders of the victims of sexual harassment.
To prove sexual harassment, the woman-victim must provide evidence in respect of the following:
The conduct (behavior) complained against is connected to sex or gender.
The conduct is severe or pervasive i.e., it goes beyond being simply annoying.
The behavior is unwelcomed, persistent, uncomforting, intimidating, or hostile.
The liability of the party you are suing, (how the person is connected to or responsible for the harassment which may either be the offender directly or the employer).(key resource: Wigginslawgrouo.com)