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Rethinking the Anti-Sexual Harassment in Tertiary Educational Institutions Bill 2019

 

Distinguished Senators of the National Assembly seek to enact a Bill to be cited as the “Prevention, Prohibition and Redressal of Sexual Harassment in Tertiary Educational Institutions Bill, 2019” (now tagged as anti-Sexual Harassment Bill). Channels Television reports that the President of ASSU (Academic Staff Union of Universities) “faulted the proposed legislation to prohibit sexual harassment in tertiary institutions across the country” during its public hearing on Monday 17:02:2020.

The anti-Sexual Harassment Bill is sponsored by the Deputy Senate President and co-sponsored by 105 Senators of the National Assembly. A clearer statement that it will be enacted and, given its apparent harmlessness, the President of the Federal Republic of Nigeria is likely to promptly sign it to law. This shows that ASUU should have participated more intellectually and prudently at the public hearing, that is, if the media did not exclude other more reasonable arguments by its President.

The aim of the anti-Sexual Harassment Bill is to promote and protect ethical standards in tertiary educational institutions, preserve sanctity of students-educators’ relationship which is grounded on trust as well as to foster respect for human dignity in tertiary educational institutions. It seeks to:
a. protect students from sexual harassment by educators
b. prevent sexual harassment of students by educators and
c. provide ways to redress complaints of sexual harassment of students by educators.

It affirms that a relationship of authority, dependency and trust exist between Educators and Students while it rightly extends the meaning of educators to include academic and non- academic Staff whether part-time or full-time or for a fixed period. It seeks to impose a duty of care and trust on educators towards their students. It clearly requires educators not to exploit students or any relationship with students “for personal gains, sexual pleasure, or immoral satisfaction, or in any way that violates the sanctity, honour and inviolability” of educators-students relationship.

The standard of proof required to secure conviction of an educator is the same as in civil disputes or litigation – balance of probability as opposed to known duty to prove guilt beyond reasonable doubt. If the anti-Sexual Harassment Bill is enacted and actually implemented, it is capable of creating anxieties and uncertainties in educators-students’ relationship. This should be prevented by installing necessary safeguards to retain and maintain the needed trust and honour.

It is a grave sexual harassment offence – a form of strict liability offence – for an educator:
a. to have sexual intercourse with a student or to demand for sex from a student or a prospective student or
b. to intimidate or create toxic environment for student by asking for sex or make advances to any students or including using a 3rd party or cooperating in any sexual harassment or
c. in any manner to grab, hug, kiss, rub or stroke or touch or pinch any students’ breasts or hair or lips or hips or buttocks or any other sensual part of her body or
d. to display, give or send by hand or courier or electronic or any other means naked or sexually explicit pictures or videos or sex related objects to any students including to whistle or wink at a student or scream or exclaim or joke or make sexually complimentary or uncomplimentary remarks about students’ physique or to stalk any students.

Given the definition of Student under the Bill, it is an implied offence for a female educator to commit any of the fore named abuses against a male student, which can happen in rare instances or also for a male educator to commit any of the abuses against a male student. Distinguish Senators should widen its provisions to expressly include these situations to ensure that every student irrespective of gender is more clearly protected.

Legal marriage is a valid defence against any allegation of an offence under the Bill yet it does not define legal marriage which traditionally excludes marriages under native customs and Islamic laws. This is a fertile ground for abuse given that educators and their spouses may utilize these in situations precipitating dissolution of such marriages.

In our view, the offences sought to be created by anti-Sexual Harassment Bill are largely capable of being abused – It needs to take into account human sensitivity and to clearly qualify it especially for the fact that intention – mens rea – is no longer required under the Bill to prove guilt for any proposed offences. Educators may fall prey to students’ hyper-sensitivity or even abnormal sensitivities with the attendant consequence of uncertainties that may characterize such relationship of trust.

The anti-Sexual Harassment Bill does not permit victims or their guardians or non-profit organizations or legal practitioners to initiate and privately commence prosecution but rather retains traditional prosecutory powers of the Attorney-General of the Federation or State and the Nigerian Police. This in our view is a clog on the implementation of the anti-Sexual Harassment Bill which is capable of fixing it permanently on the shelf of the moribund library of the National Assembly when signed into law.

Complaint of sexual harassment is required to be in writing which will be delivered to the Nigerian Police or the Attorney-General of the Federation or State and, a counterpart copy must be delivered to administrative head of the institution as well as to the Secretary of the Independent Sexual Harassment Committee of the institution. A committee required to be created by anti-Sexual Harassment Bill.

It is doubtful if it is a sexual offence for an educator in one institution who has no contractual relationship with another institution to have any explicit or implicit sexual relationship with any Student of such institution. Given that the definition of students or educator does not foresee any such evident event, we recommend that it be widened to include similar situations.

Any offence of actual sexual relations or coercion of sexual relations under the anti-Sexual Harassment Bill is proposed to be punishable with not less than 5 years imprisonment with a ceiling of 14 years and no fine, while a kiss, complimentary sexual remarks, whistling, grabbing and touching of any students’ sensual body party including hairs and, sending of illicit sensual images attract not more than 5 years imprisonments but not less than 2 years with no option of fine. Given the Nigerian Correctional System – rebranded Nigerian Prison Services - which presently battles with episodes of publicly exposed extortion and bribery, no educator may receive any form of rehabilitation and, his family and society will be robbed off his contribution because he boyishly whistled at a Student.

The administrative head of any tertiary educational institution is required to set up an Independent Sexual Harassment Committee which shall be independent and impartial in all its dealings, proceedings and affairs. We recommend that independent membership – akin to independent directorship in corporate governance - that is, a member who is not an employee or consultant or who has no form of transactional relationship with the institution be required to sit on the Committee. This will serve as an added safeguard to human respect, impartiality and independence.

It is an offence for an administrative head or the Secretary of the Committee to decline or delay to act on any complaints against an educator within the required time limit. The only apparent disincentive to Students from making false claims is the possibility of being sanctioned by the administrative head of the institution – that is if she had not successfully secured conviction of the educator before a Court of Law, given that an investigation by the Committee is not a bar to any prosecution. This ought to be clarified and streamlined to avoid sentencing an innocent educator.

To our mind, the anti-Sexual Harassment Bill should make it a criminal offence for Students who sexually harass educators including sending unsolicited sexually explicit or implicit pictures to any educators. Even though young women are generally modest, this will further augment their natural inclination to modesty and serve as reins on the imagination of male students against female educators. Note that failure to prove a claim does not amount to any falsity.

Any Students or educators that fail to apply for a judicial review of the decision of the Committee within 21 days of it being communicated to it forfeit any rights to any review. This does not take into account the statutory pre-action notices required to sue public educational institutions in Nigeria. The Senate should exclude statutory pre-action notice to the Bill or extend the time limit to accommodate it otherwise it will amount to injustice. The Bill rightly excludes public officers’ protection laws.

We recommend that the definition of Students should include interns in tertiary educational institutions and for avoidance of doubts, it should include students on any exchange scheme. These are evolving cultures in private tertiary institutions.

Finally, ASUU should articulate more careful arguments to ensure that the anti-Sexual Harassment Bill when signed into law does not harm educator-student relationship and, that educators do not carry out their nationally required duty in fear and uncertainties. The indications are clear, that the anti-Sexual Harassment Bill will be enacted and, speedily so.

Osita Enwe Esq is a Managing Associate at SRJ Legal Practitioners and regularly advises tertiary educational institutions and a business school.

WRITTEN BY Osita Enwe

Osita has been called to the Nigerian Bar with a widening experience in corporate/commercial and transactional practice that include handling transactions for Individual and Institutional Clients as well as Foreign Investors in Institutional investment, acquisitions and, establishment of Nigerian companies; continual interface with Federal and State Government Agencies and MDGs, among others.

Contact him : oenwe@srjlegal.com

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