INTRODUCTION
The bill titled sexual harassment in tertiary educational institutions prohibition bill, 2016 is sponsored.
The long title of the bill introduced it as a bill for an act to make provision for the prohibition of sexual harassment of students by educators in tertiary educational institutions and for matters connected therewith, 2016.
The overall objective of the 20-sectioned bill is to provide a stricter statutory protection for students against sexual hostility and all forms of sexual harassment in tertiary schools by making it a criminal offence for any educator in a university, polytechnic or any other tertiary educational institution to violate or exploit the student-lecturer relationship of authority, dependency and trust for sexual pleasures.
The level of sexual harassment that goes on in our tertiary institutions is overwhelming and alarming and no tertiary institution seem to be exempted; from universities, to polytechnics to colleges of education and the rest; even the religious institutions are not exempted and this menace has gone on for so long unchecked. Some educators now even see sexual relations with their students, as one of the perks of being an educator. This shameful, now glorified, act is what the Sexual harassment Bill seeks to prohibit.
What is Sexual harassment?
Section 2 of the bill defines “Sexual harassment” to include sexual intercourse between an educator and a student where the student is below the age of 18 years or is an imbecile or of generally low mental capacity or physically challenged; any unwelcome sexual attention from an educator who knows or ought reasonably to know that such attention is unwelcome to the student; any unwelcome implicit or explicit behaviour, suggestions, messages or remarks of a sexual nature that have effect of offending, intimidating or humiliating the student or a related person in circumstances which a reasonable person having regard to all the circumstances would have anticipated that the student or such related person would be offended, intimidated or humiliated; any implied or expressed promise of reward by an educator to a student or related person for complying with a sexually oriented request or demand; or any implied or expressed threat of reprisal or actual reprisal from an educator to a student or related person for refusal to comply with a sexually oriented request or demand[1].
As well encompassing as this definition is, there arises the issue of what constitutes ‘unwelcome sexual attention’ this is because arriving at determination of whether the conditions particularly that of the act being unwelcome exist may not be easy to determine since what is unwelcome or not is essentially subjective. How is this to be determined? There is also the reasonability test, this is a lot subjective and speculative and may be quite difficult to prove in court if eventually this bill becomes an Act and cases spring from it.
Who can run foul of the law?
By virtue of section 3 of the Bill, a relationship of authority, dependency and trust shall be construed to exist between an educator and a student in an institution if the educator is directly or indirectly involved in the full-time or part-time academic training, teaching, advising, supervising and education of the student; or the educator has direct or indirect academic or non-academic authority over the student; or the student depends, directly or indirectly, on the educator in any manner whatsoever.
Invariably, the Bill, if passed into law will extend beyond lecturers as it relates also to non-academic staff this is a welcomed development because more often than not, the lecturers have been at the receiving ends of similar laws as this forgetting that other non-administrative staff are also culpable.
When will the offence of sexual harassment arise?
According to the bill, an educator commits an offence of sexual harassment against a student if he/she has sexual intercourse with a student who is less than 18 years of age or who is physically or mentally challenged[2]; or has sexual intercourse with or demand for sex from a student or a prospective student as a condition to study in an institution or as a condition to the giving of a passing grade or the granting of honours and scholarships, or the payment of stipend, allowance or other benefits, privileges or considerations [3]; or solicits sex from or makes sexual advances towards a student[4]; or directs or induces another person to commit any act of sexual harassment[5]; or grabs, hugs, rubs, strokes or touches or pinches the breasts or hair or lips or hips or buttocks or any other sensual part of the body of a student; displays, gives or sends naked or sexually explicit pictures or videos or sex related objects to a student; when the sexual solicitation or sexual advances result in an intimidating, hostile or offensive environment for the student; or whistles, winks; screams or exclaims at a student or makes sexually complimentary or uncomplimentary remarks about a student’s physique[6].
This bill places a whole lot of burden on the educator as against the students. We cannot shy away from the fact that a lot of the so-called sexual harassment cases emanates from the students (especially the female ones). Many of us will attest to the fact that the students are more often than not, the ones who lure these educators into sexual escapades for the sake of the benefits that they stand to get from such relationship ranging from admission to good grades to good hostel accommodation and so- on.
Much as we appreciate the fact that the students are the weaker party which the Bill seeks to protects, making it feel as if the educators are the only evil here is a bit one sided hence, we should strive to strike a balance in the level of responsibility expected of both parties.
Criminal Penalty for the offence
Anyone convicted of the foregoing offences is liable to imprisonment of up to 5 years but not less than 2 years without an option of fine[7].
Available defence (s)
Unlike most other sexual offences, the Bill provides that consent shall not be a defence[8] as the only tenable defence to the offences created under section 4 of the bill is that the educator and the student are legally married[9].
Who can lodge a complaint?
When there is a case of sexual harassment, either the student or any other concerned person could report at the Nigerian Police or to the Attorney-General for criminal prosecution[10]. Where the educator is found guilty of sexual harassment, he may be sentenced to imprisonment of up to 5 years but not less than 2 years without an option of a fine[11]. This does not, in any way, debar the student from also instituting a civil action against the educator and where such civil action is instituted, the standard of proof in such proceedings shall be the same standard applicable in all civil proceedings[12].
Administrative remedy, procedure and sanction
There is also the avenue for the student or the relative, lawyer or guardian to lodge a complaint on sexual harassment with the administrative head of the institution where the complaint arose by submitting a written Sexual Harassment Complaint containing the name and address of the educator who is alleged to have committed sexual harassment and upon receipt of such complaint, by the administrative head, he shall promptly, within seven (7) working days, constitute a panel to be known and called Sexual Harassment Prohibition Committee to determine sexual harassment complaints[13]. Failing which, the administrative head will be guilty of an offence punishable by not less than two (2) years imprisonment or a fine of not less than N2million or both[14].
The membership of the Sexual Harassment Prohibition Committee shall be five (5) persons, including the Chairman and any 3 members shall form a quorum. However, where the complaint is against an academic staff, the chairman shall be a non-academic staff and vice-versa. The committee is expected to be judicious and fair in the exercise of its discretion throughout the proceedings. The decision of the Sexual Harassment Prohibition Committee which shall be by a simple majority and in writing, is to be made within 30 days the date of its inauguration by the administrative head[15].
Where it is found that the educator is guilty, the committee may recommend dismissal of the educator or a reduction in rank and where the complaint turns out to be false, the committee may recommend appropriate sanction against the student which may include dismissal[16]. If the educator or the student is dissatisfied with the findings or decision of the committee, he or she may apply to the High Court for judicial review[17]. Where there is no notice of such judicial review within 7 days, the administrative head shall go ahead to implement the recommendations of the Sexual Harassment Prohibition Committee[18].
Protection for student
The bill further saddles the administrative head with the responsibility of ensuring the protection of any student that files a sexual harassment complaint from victimization. And any educator, who victimizes a student because of a sexual harassment complaint filed, shall be liable to the same punishment as the educator whom the student originally complained against[19].
Air your opinion
Let us know what you feel about the sexual harassment prohibition bill. Kindly drop your comments in the comment section.
[1] Section 2 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[2] Section 4 (1) Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[3] Section 4 (2) and (3) Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[4] Section 4 (4) Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[5] Section 4(5) Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[6] Section 4 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[7] Section 8 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[8] Section 5 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[9] Section 6 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[10] Section 7 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[11] Section 8 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[12] Sections 9 and 10 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[13] Section 12 (3) Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[14] Section 15 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[15] Section 12 generally Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[16] Section 12 (11) and (12); section 16 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[17] Section 13 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[18] Section 17 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
[19] Sections 19 and 20 Sexual Harassment in Tertiary Educational Institutions Prohibition Bill, 2016
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There's need to magnify this Act to cover sexual harassment generally which include sexual harassment in the tertiary institution, in the work place and in the community. In UK, Australia even South Africa and other countries in Asia this is what is obtainable enacting legislation in piece meal is untidy, hasty and a farce. I called upon the sponsored to harmonize it accordingly.
I agree entirely with your view and that of Mohammed on the need to expand the scope of this bill. In addition, it should include our secondary school children. I have submitted a memorandun to that effect
Since the Bill is about the commission of a serious crime which is punishable without an option of fine the proof of same should be beyond reasonable doubt,as in other crimes,otherwise it will easily be abused by ladies who may even use it as a blackmail against male lecturers because of the ease of proof.And the protection should also be extended to male students as sexual harassment is not exclusive to the male lecturers or administrative staff.
Truly, if this bill comes into exiistence, it will help to curb a lot of social ills and indecent behavior in our tetiary institutions. As a matter of fact, in considering this bill, we must not lean solely on the instructors and administrative officers of our tetiary institutions. But recourse must also be had to the indecent manner some students dress. There are some students who prefer to dress in such awkward manner like being half nude or exposing a large chunk of their breast lines thereby sexually arousing any male educator into whose office they may go for some form of assistance.
In such situation, this may be termed sexual harassment against such male educator expressedly or impliedly.
Instances abound where female educators also harass male students. And an attempt at any resistence, often lead such male student to one form of threat to another.
Authorities of Tetiary institutions must strictly enforce the law on dress code .
These are some areas I think, the bill should along look at and make some inclusions by way of amplification.
The Bill is a welcome development. I happened to be a victim of sexual harassment and I know I suffered a lot while in the University for this. But I still believe that they also fail to understand that some students throw themselves at these lecturers which makes them feel they can have anyone they want. There should also be made provision for students who would now use this as tool to punish innocent lecturers.
I support Mohammed 's view. The sexual harassment at work places is on the increase too. This should be looked into.
I think the Bill should also look into indecent dressing that attracts some young lecturers from being a prey into the hands of their students in order to strike a balance between the two.
This Bill is much welcomed but I think it is one sided. Student also do harass, influence, intimidate and abuse educators sexually using diverse means and methods. They suggest, insist and lure educators into such acts. How do we reconcile this. How do we ensure that students dress properly and responsibly and importantly take their studies seriously so they don't impose themselves on lecturers? How do we ensure that the schools authority discipline/deal with erring educators and students who violate the schools regulations by indulging in such acts?
Again, sexual harassment should not be tied to age. The way the bill is couged, the essense is already defeated if its application or enforcement is limited to victims under 18 years of age. Experience has shown that sexual harassment is no respecter of age, age has never been, it is not, it will never be a consideration for sexual harassment, both adult and young are prone and susceptible to this manace. The qualification of age (under 18) should be expunged from the proposed bill
This is a welcomed development and long over due. However the legislation in implementation will leave the victims short changed. The responsibility created by the legislation falls short of what is tenable in other countries with similar legislations. The legislation should cover a wider group as suggested by @ Mohammed. It should include sexual harassment in all educational institutions and workplace. Consent by a student, whether male or female in the educational institutions should be immaterial (strict liability ) because of the obvious strong fiduciary / trusted relationship already in existence and imputed. Also immaterial that the student did the asking/ pursuing. Age should be made immaterial as betwee a lecturer and a student. Consent should be a defence in the workplace. Upon proof, the educator should be dismissed and illegible to teach anywhere in Nigeria.
This bill is a welcome development. the bill should be able to cover educational institutions, such as primary, higher, tertiary and other professional institutions of learning, and, even extend to the working environment. in the definition of SH it should also include student Harassing it's fellow student.