Over the last 3 years, Kenya has witnessed stagnation in terms of progressing protections for workers from unwanted sexual conduct, and encouraging the reporting of sexual harassment once it occurs. Judicial decisions lack completeness in outright sanctioning sexual harassment and full recognition of workers’ rights. Direct sanctioning of sexual harassment by the courts would enhance victim reporting, deterrence of perpetrators, and safeguard workers’ welfare.

Continuity in Judicial Reluctance

What is different from a Judge determining a case of sexual harassment in 2021 in Kenya and another judge with a similar responsibility in 2024? It may be argued that the 2021 Judge showed much more promise in protecting employees from hostile working environments than the current Judge.

The pre-2021 position was heralded by the decisions in cases like the Board of Trustees and Securex in which the courts directly sanctioned sexual harassment, enhanced compensation for victims, and broadened the scope of unwanted sexual advances (extending liability beyond persistent physical advances to verbal harassment and single occurrence of unwanted behaviour). These decisions signaled a new dawn, with a sense that future case law would build on this path thereby widening the space for the enjoyment of employee rights. However, emergent case law has dampened optimism about the body of case law in pre-2021 period.

Recent court decisions like Chandarana Supermarket point to continued judicial reluctance to directly address violations of prohibitions on sexual harassment, enhanced compensation for victims, and broadening employee rights. Though lauded for holding that a supervisor of a leading supermarket chain was liable for sexually harassing the claimant, Chandarana failed to advance the position in earlier cases like Board of Trustees and Securex which enhanced victim compensation and directly sanctioned sexual harassment for  unwanted sexual advances rather than penalize the supermarket for unfair dismissal of the claimant for reporting her perpetrator (supervisor)

What exists in protecting employees from sexual harassment is largely provided in the Employment Act (civil liability) and the interpretation of its provisions by the courts. How courts interpret provisions therefore is key to the protection of Sexual Harassment victims.

One of the procedural hurdles for sexual harassment victims under the Employment Act is the burden placed upon them to prove the ingredients of “unwanted sexual behavior”, whether physical, verbal, or non-verbal. A welcome development was made in Hardware Trading Store where it was held that the burden of proof shifts to the alleged perpetrator to prove the unwanted behaviour did not occur once the victim has proved facts of unwanted sexual advances as required under section 6(1) of the Employment Act.

The Chandarana case concerned a claim for sexual harassment by a supermarket attendant against the supervisor and a claim for the equivalent of $20,000 (similar to Board of Trustees) as general damages for sexual harassment. Though the court held the claimant had been sexually harassed, it agreed with the respondent supermarket’s computation of compensation of Kshs. 500,000 (approximately $5,000) based on amounts awarded 10 years ago. Further, the Judge considered the case of Hardware Trading Store, but did not go as far as to affirm its reasoning and elaborate on the circumstances in which the burden of proof shifts to the Defendant under section 47(5) of the Employment Act in cases wherein victims’ employment is unfairly terminated for raising sexual harassment complaints. Such an affirmation would have entrenched the exception to rules of evidence and released victims from the burden of proving unwanted sexual advances and facing re-traumatization.

In the Sexual Harassment and the Law in Africa book, perspectives from Kenya examined the level of protection afforded by the legal framework law on sexual harassment revealing incremental gains in case law in sanctioning sexual harassment: broad interpretations of sexual harassment, recognition that sexual harassment is a violation of constitutional rights, increased awards in damages as compensation for the victims, and lack of sexual harassment policy as a violation of victims’ rights to fair working environment.

Yet proposals for legislative reform have done little to advance the interests of workers and deter perpetrators of sexual harassment. A Sexual Offences Bill has been published mandating the Cabinet Secretary of Education to sensitize teenage girls in school about sexual offences and sexual harassment. However, the legislation fails to propose substantive amendments to section 23 of the Sexual Offences Act (sexual harassment clauses), especially on the issue of enhancement of penalties for offenders.

Conclusion

The approach to the protection of employee rights’ which started in the Board of Trustees case has gained little traction in recent court decisions. The courts have been reluctant to directly sanction sexual harassment, thereby hushing the victims’ claims time and again. Recognition of sexual harassment as a violation of constitutional rights as recognized in Securex is yet to be comprehensively dealt with.

There is still a long way to go and it is time for the courts to resolve the question of shifting of burden of proof (and develop related principles) and directly sanction sexual harassment where it is proven. This will infuse much-needed certainty for victims and better safeguard conducive and non-hostile work environments.