By Kibet Tobias
Several cases of sexual assault have been reported in Kenya in recent months. The sad bit is that most of the victims are usually intimidated and even threatened and hence chose to suffer in silence in order to keep their jobs.
Unfortunately those who report sexual harassment to the authorities rarely get justice mainly due to lack of enough evidence to have the perpetrators convicted. This ends up leaving the victims more frustrated.
On the flip side, there are people who lie about being sexually harassed either because they want to get paid or are looking to get revenge.
However, what constitutes sexual harassment and what does the Kenyan law say about it.
What the Kenyan law considers sexual harassment
According to section 6 of the Employment Act 2007, an employee is sexually harassed if the employer, a representative of the employer or a co-worker;
- Directly or indirectly requests the employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express with a promise of preferential or detrimental treatment of the employee (e.g. higher salary, promotion).
- Threat of detrimental treatment in employment
- Threat about the present and the future employment status of the employee
- Uses language, whether written or spoken of a sexual nature
- Use visual material of sexual nature
- Shows physical behavior of a sexual nature which directly or indirectly subjects the employee to a behavior 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
How do you prove sexual harassment?
Should you feel like you have been sexually harassed in the workplace, you have to be able to prove that the harassment actually has taken place with evidence of the dates, times, and nature of the incident.
Were there witnesses? If yes they could significantly help you prove your claim. You should also save any communication from the alleged aggressor to support your claim, from emails to text messages as well as any recording video or audio.
Thus, it is important that you first report the harassment to the human resources department for action.
Consequences if found guilty of sexual harassment
Once the complaint is brought to the attention of the employer, he or she can take appropriate measures against the culprit for the purpose of investigation.
Section 44 of the employment ACT 2007 states that an employer an employer shall, before terminating the employment of an employee, on the grounds of misconduct, poor performance or physical incapacity explain to the employee, in a language the employee understands, the reason for which the employer is considering termination and the employee shall be entitled to have another employee or a shop floor union representative of his choice present during this explanation.
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One may also choose to report the matter to the police, who will investigate and if there is sufficient grounds, the case proceeds to a normal criminal trial, where the state through the office of the DPP has to establish a case beyond all reasonable doubt.
According to the Sexual Offences Act of 2006, any person, who is in a position of authority, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and is liable to imprisonment for at least three years or to a fine of at least 100,000 shillings or both.
It doesn’t matter who commits the offense. It could be your supervisor or coworker. And when it comes to sexual harassment the burden of proof normally lies with the person who is claiming sexual harassment.