Addressing s3xual harassment in tertiary institutions across the country has become a serious concern to many Nigerians. Some lecturers have been caught pants down in the act. This has led to the National Assembly passing a bill that will criminalise s3xual harassment. The last attempt at getting a law to stop the practice failed, leading to questions as to whether the new law passed by the House of Representatives will see the light of day, TONY AKOWE reports.
One disturbing trend in Nigeria’s educational system, especially at tertiary level, is s3xual harassment of students. Female students have been more at the receiving end as some of them are subjected to s3xual exploits by those who are supposed to help build their future. Even though some academic staff have in recent times been made to face the law, some lawmakers and many Nigerians believe that there is the need to put in place specific laws that will guard against this practice.
This gave rise to a bill before the 10th House of Representatives to stop s3xual harassment in tertiary institutions. Even though a similar bill passed through the Senate in the 9th Assembly and was passed by the Senate, it never saw the light of day.
However, Akintunde Rotimi (APC, Ekiti) unearthed the bill and brought it back to the House for consideration and passage. The passage by the House is what Omowunmi Ogunrotimi, Choice Enebeli and Lucky Emenife described as a new dawn in tertiary education in the country. Emenife, who is president of the National Association of Nigerian Students, said the bill would rescue Nigerian students from s3xual harassment, while appealing to the Senate to expedite action in giving concurrence to the bill. Enebeli, on her part, said the provisions in the Nigerian legal books were not enough to handle issues of s3xual harassment, hence, the need for the bill.
The making of the Bill
It is instructive to say that at its plenary session of Tuesday, July 7, 2020, the Senate had passed a bill, which seeks to prevent, prohibit and redress the s3xual harassment of students in tertiary institutions. Before the passage of the bill by the 9th Assembly, the senators were told that stakeholders had unanimously agreed that the internal mechanisms of tertiary institutions for addressing cases of s3xual harassment were either non-effective, non-existent or inadequate, while advocating for the need for educators and practitioners to promote and uphold standards that will guarantee a safe and conducive learning environment for students. They argued that the aim of sanctioning s3xual harassment in tertiary institutions was to ensure that no student on account of gender should learn in an environment characterised by s3xual harassment.
The Senate bill failed to see the light of day either because it failed to get concurrence from the House of Representatives or because the then President failed to sign the bill into law. The bill in the 9th Assembly was sponsored by the then Deputy President of the Senate, Senator Ovie Omo-Agege and 105 other Senators. In the report of the committee that worked on the bill in the 9th assembly, drew attention to the preponderance of views expressed by Nigerians on the bill, while saying that it was only the Academic Staff Union of Universities and one other unnamed individual or institution that opposed the bill. According to the Senate report, s3xual harassment is one of the major factors responsible for the decline in academic excellence in the country.
The position of the Academic Staff Union of Universities (ASUU) included, but not limited to the argument that the law violates all known global norms and legal principles in the sense that universities are autonomous bodies and can regulate their own affairs, including issues of misconduct with clearly articulated and appropriate redress mechanism; that the proposed legislation targets a particular person or a particular group, which in this case are the educators in tertiary institutions; and that the Bill is discriminatory, selective and spiteful, impulsive and lacks logic as it attacks the character of persons in tertiary institutions as if the act of s3xual harassment is peculiar to tertiary institutions alone.
It added that the provisions of the Bill excluded s3xual harassment in primary schools, secondary schools and workplaces and that the Bill failed to take into cognisance the provisions of other extant laws with specific references to the Criminal Code Act, the Penal Code, Child Rights Act, Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 and the Violence Against Persons (Prohibition) Act, 2015, which adequately deals with issues of s3xual offences.
The report, which was presented for consideration by Senator Opeyemi Bamidele said hard work, merits and transparency have been compromised by this ugly trend, which has provided a hostile learning environment for students, thereby creating an enabling atmosphere for mediocrity, indiscipline and inefficiency in tertiary institutions. It said: “Some stakeholders were of the view that the National Assembly lacks the legislative competence to legislate on this subject matter on the ground that the legislation is not on the Exclusive Legislative List, the Concurrent Legislative List, or the supplementary provisions of the constitution and that the absence of a legislation to particularly mitigate the menace of s3xual harassment in our tertiary institutions is the reason for the overwhelming rise in cases of s3xual harassment as have been reported in recent times.”
However, it added: “The ASUU is of the view that the Bill is a hominem because it targets educators in the tertiary institutions, whereas s3xual harassment is a general societal problem that is not peculiar to tertiary institutions alone. ASUU is also of the opinion that the Bill is an affront and unnecessary interference with the universities’ autonomy as guaranteed by their enabling laws. More so, there are extant laws with sufficient provisions to deal with the subject matter.”
But, Opeyemi denied that the law is targeted at a particular community, which is the educators and that it does not interfere with the autonomy of the universities. Rather, he said the law is intended to reposition and strengthen the tertiary institutions to maintain the core values of etiquette and excellence, which are the cardinal objectives of educational institutions. He argued then that in spite of the existing internal procedures in some tertiary institutions, these do not have the force of law and s3xual harassment cases still continue unabated; hence this Bill will bridge the huge gap and give a legal backing to any internal rule by the educational institutions to check the incidences of s3xual harassment. He also dismissed ASUU’s claim that there are extant laws that can sufficiently address s3xual harassment in tertiary institutions, saying the legislators found that there were no such laws in place. The only one that comes close to that is the Violence Against Persons (Prohibition) Act, 2015, which is only applicable in the Federal Capital Territory, Abuja.
The essence of current bill
The bill passed by the 10th House aimed at protecting students against s3xual harassment by those it called educators in tertiary institutions as well as prevention of s3xual harassment of students by educators in tertiary educational institutions; and redress of complaints of s3xual harassment of students by educators in tertiary educational institutions.
An educator is defined by the law to mean any person, whether academic or non-academic staff, who holds a position of authority or influence within an educational institution. This includes, but is not limited to lecturers, professors, tutors, administrative staff, counselors or any individual employed by the institution, whose role involves regular interaction with students. The term also extends to students who act in a supervisory or mentoring capacity over other students, such as graduate students, teaching assistants or research supervisors, where a power imbalance exists. The law states that an “educator” may also include any person performing similar functions under a contract or voluntary service, regardless of their employment status.
It states further that “to uphold the Objective of the Bill, an educator shall observe a fiduciary (Inviolable duty of care founded on honourable human behaviour, obligation of good faith, honesty and respect for human dignity and rights) duty of care to every student by not exploiting a student or his/her relationship with a student for personal gains, s3xual pleasure, or immoral satisfaction, or in any way whatsoever that violates the sacrosanctity, honour and inviolability of the fiduciary relationship of authority, dependency and trust between him/her and a student.
The law prohibits those involved in educating Nigerian students from engaging in any form of “unwelcome physical contact or verbal conduct of a s3xual nature with a student or prospective student, or demands such conduct, regardless of consent”. They are also banned from creating a hostile, offensive, or intimidating environment for a student by making unsolicited or inappropriate s3xual advances, or by requesting s3xual favours; or directs, facilitates, assists, or encourages another person to engage in any act of s3xual harassment as defined under this Bill”. In addition, they are also prevented from displaying, sending or distributing any form of s3xually explicit or suggestive material, including images, videos or objects to a student through any medium; or makes verbal or non-verbal remarks, comments or gestures of a s3xual nature or any remarks or conduct intended to degrade, humiliate or body shame a student based on their physical appearance.
Interestingly, the law which is awaiting the concurrence of the Senate states that the fact that the student consented to the s3x will not constitute a defence, especially where a power imbalance exists between the educator and the student. However, the only defence is that the educator and the student are legally married. It also states that “for the purpose of proving the commission of any offence under this Bill, it shall not be necessary to prove the intention of the accused person, nor shall the circumstances in which the act of harassment was carried out mitigate the offence”.
Filing of petition on s3xual harassment
Filing of complaint on s3xual harassment is expected to be done in writing either by the student or by a student’s representative, who may be a relative, a guardian or a lawyer representing the student, or any person who has interest in the wellbeing of the student to the Police or the Attorney-General, who is expected to take necessary measures to prosecute the educator in accordance with the provisions of the law. The petition is also to be “delivered by the student or the student’s representative to both the administrative head and Secretary of the Independent S3xual Harassment Committee of the affected institution for record purposes and such actions”. Following the petition and after due diligence in terms of investigations, criminal proceedings will then commence in a court of law.
Penalties for those found guilty
The law imposed several penalties on those found guilty of engaging in s3xual harassment. It states that “any person who commits any of the offences or acts specified in Clause 4 (1), (2) and (3) of this Bill is guilty of an offence of felony and shall, on conviction, be sentenced to an imprisonment term of up to 14 years but not less than five years, without an option of a fine”. It also states that “any person who commits any of the offences or acts specified in Clause 4 (4), (5) and (6) of this Bill is guilty of an offence and shall be liable on conviction to imprisonment term of up to five years but not less than two years, without an option of a fine”.
The law protects the right of the students, especially those who complained of s3xual harassment, in addition to the fact that “the standard of proof in any proceedings for an educator’s breach of the fiduciary duty owed to a student under Clauses 2 and 3 of this Bill shall be the same standard applicable in all civil proceedings”.
But, it is the duty of institutions to carry out institutional disciplinary measures, especially internal measures contained in its internal policies. In other words, the law will not take the powers of the various institutions to take action against such educators. It states that “nothing under this Bill shall preclude an institution from proceeding under its established policies, rules and regulations for the internal administrative discipline of its staff and students, provided that where criminal proceedings have been commenced under this Bill or pending in a court in respect of a complaint of s3xual harassment of a student by an educator, no disciplinary body, including an Independent S3xual Harassment Prohibition Committee in an institution, shall have the power to commence or continue disciplinary proceedings or render any decision in respect of the acts or offences complained of, among others.
Clause 8 requires the establishment of an Independent S3xual Harassment Prohibition Committee by the head of the various institutions. Such committees is expected to have seven members of staff, including a chairman, who shall not be less than the rank of a senior lecturer or a deputy director in the federal civil service and a secretary, who shall not be less than the rank of a lecturer or an assistant deputy director in the federal civil service. It is expected to be made up of at least two students, two non-academic staff and two academic staff and shall include at least three women. It provides a punishment of N5 million or an imprisonment of five years for any administrative head of an institution, who fails to set up such a committee. The committee is expected to be independent and impartial in all its dealings, proceedings and affairs.
It also states the disciplinary procedure to be explored by the institution in determining the case. For example, it states that “an administrative head shall refer or transmit every S3xual Harassment Complaint received from students to an Independent S3xual Harassment Committee through its Chairman within 14 working days of the receipt of such a complaint for purpose of investigation, determination and a final decision.
Upon receipt of a S3xual Harassment Complaint, an Independent S3xual Harassment Committee shall take immediate steps to investigate, determine and reach a final written decision on the complaint within 45 working days from the date of receipt of the complaint from the administrative head”.
Sanctions for raising false alarm
While stipulating measures to curtail the practice, the law is not unmindful of the fact that some students can be mischievous and may deliberately raise false alarm. So, it made provision against false complaints. Clause 12 states that “where at the completion of an investigation into a S3xual Harassment Complaint, an Independent S3xual Harassment Prohibition Committee finds or determines in its final decision that the complaint is false and malicious, the committee may recommend sanctions to the administrative head against the student who made the complaint, which may include suspension of the student provided that failure to prove an allegation of s3xual harassment shall not be conclusive to establish that the complaint is false or made with malice or prevent further investigations or criminal prosecution of an educator for the offence alleged to have been committed contrary to any provisions of this Bill”. It also aims to protect students from victimisation. It makes it mandatory for the head of the institution to “ensure that a student who makes a S3xual Harassment Complaint under this Bill is adequately protected and not subjected to any form of victimisation by the educator who is complained against or any other educator or person within the institution or in another institution.”
But, the question is whether the law will address the problem of s3xual harassment in the nation’s tertiary institutions, especially when considered from the viewpoint of ASUU. Some Nigerians are, however, concerned that provisions of the law may be used to victimise some educators, especially when considered against the fact that there are no provisions to address immoral dressing by students and making s3xual advancement at educators to curry favour in view of the fact that the law states that consent will not be a defence under the law.
