In a 2024 report on sexual harassment laws in Africa, the inconsistency in definitions and fragmented approaches to reporting, investigations and punitive measures was found to be a significant challenge. A lack of consistency as to what constitutes sexual harassment, vague conceptualizing and glaring blindness of nuances around consent, weak accountability and oversight mechanisms as well as a narrow interpretation of who a perpetrator is, and the search of a perfect victim are but some of the factors which foster impunity.  

In the South African case of Shoprite Checkers (Pty) Ltd v JL, the actual act of sexual harassment involved the complainants immediate supervisor slapping her on her left buttock, who then giggled and ran off thereafter. This was the quintessential so-called single incident that led to a finding by the Labor Court that the complainant in the matter had indeed been subjected to sexual harassment.  South Africa’s Code of Good Practice contained in the Employment Equity Act: Code of Good Practice: Handling of Sexual Harassment Cases in Workplaces: Amendment | South African Government specifically provides that a single incident of unwelcome sexual conduct may constitute sexual harassment. Contrast that to Kenya’s law on sexual harassment, which does not have a specific provision relating to the single incident or Kenya’s Sexual Offences Act which requires a claim of sexual harassment to have been ‘persistent.’

Zimbabwe law defines sexual harassment as an ‘unfair labor practice’ Labour Act (Chapter 28:01) committed by an employer or ‘any other person’  against an employee. Whilst the terms employer and employee are clearly defined, it is less clear what any ‘other person’ means as it is not defined. What is also absent is the broad scope of actors who commit sexual harassment and the victims. For example, under Zimbabwe law, a property owner or manager may not be liable to a claim of sexual harassment from a tenant as this may not fall within the narrow prescriptions of employer and employee. Similarly, an educator or professor in a university setting may escape liability based on the narrow employer/employee construct. Under Zimbabwe law, a job applicant, intern, volunteer and informal workers (including domestic workers) would reside outside the legal protections of section 8. Furthermore, a sexual harassment claim may likely fail on proof of consent because the provision provides for the conduct only to be ‘unwelcome’ without any persuadable context offered. In 2024, the Embrace Project, a non-profit organisation which aims to combat gender-based violence, and a rape survivor (First and Second Applicants) filed an application challenging the constitutionality of the Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 (“Act”) and its definition of consent.

The ruling removed the ability of persons accused of sexual violence to rely on a subjective belief that consent was given by a complainant, High Court Judgment. In the Australian case of Elliott v Nanda & Commonwealth [2001] FCA 418, the Commission found that the applicant had been sexually harassed, notwithstanding the lack of express indication of non-consent to the harassing conduct.

The attempt to address sexual harassment laws through a purely criminal process is further evidence of the fragmented approach to sexual harassment within the continent. In Cameroon for instance, section 302-1 provides that “a person who takes advantage of their position of authority to harass another with orders, threats, constraints or pressure in order to obtain sexual favors can be punished with imprisonment of six months to one year and with a fine of FCFA 100,000 to FCFA 1,000,000.” Other countries which have adopted this purely criminal approach to sexual harassment have had little to no success in litigating sexual harassment claims in the courts.  A high burden of proof, and the punitive nature of the criminal justice system which seeks to punish the perpetrator without monetary award for the victim contributes significantly to the problem.

Whilst the rationale towards implementing sexual harassment laws in their imperfect form is understandable, a complacent approach towards law reform could prove lethal and self-sabotaging. The successful Constitutional Court challenge to consent in South Africa demonstrates that working within the constraints of imperfect laws should never be a hindrance to fixing what is broken. This is the call and duty of SheThePeople, in the struggle to achieve a purer form of gender and workplace equality duly reflected by laws.