THE POSITION OF THE ACADEMIC STAFF UNION OF UNIVERSITIES (ASUU) ON THE PREVENTION, PROHIBITION AND REDRESSAL OF SEXUAL HARASSMENT IN TERTIARY EDUCATIONAL INSTITUTION BILL, 2019
Our Union, the Academic Staff Union of Universities (ASUU), is opposed to the enactment of the Bill. ASUU’s position against the bill is predicated on the following grounds:
The bill violates all known global norms and legal principles for a number of reasons.
As a global norm, universities and other tertiary institutions are established by law as autonomous bodies (e.g. The Universities (Miscellaneous Provisions) (Amendment) Act 2003 (otherwise called the Universities Autonomy Act No. 1, 2007). These institutions have their own laws regulating their affairs, including misconduct generally among both staff and students, with clearly articulated appropriate redress mechanisms. Any law or bill which seeks to supplant these laws violates the university autonomy. In this particular instance, the bill violates the Federal Government of Nigeria (FGN) and ASUU Agreement of 2009, and as such, should be rejected.
As a cardinal principle of law, a law or bill must not be targeted at a particular person or a particular group of people only. Any law which is targeted at a distinct group (“educators”) is referred to as ad hoc, ad hominem legislation. The bill, targeting sexual harassment in tertiary institutions alone, is an example of ad hoc legislation and therefore should fail on that ground.
The bill fails the test of fairness. It is discriminatory in the sense that it particularly targets those in particular communities i.e. the tertiary institutions (“educators”) for an act that is a general societal problem, and not peculiar to the tertiary institutions. The bill is thus in clear violation of section 42(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because it is discriminatory against a particular segment of people in tertiary institutions.
The bill targets and seeks to make those in tertiary institutions (“educators”) more liable for an act that is a general societal problem and is thus a clear violation of the principle of the equality before the law according to which everybody must be subjected to the same law. The issue is that the University Laws and extant Disciplinary Procedures fully address the matter of Sexual Harassment.
- The bill has failed to take cognizance of various extant legislations that adequately deal with the issue of sexual offences and which are quite wider in scope than the provisions of the bill. Some of these are:
Criminal Code in sections 218, 219 which deals with unlawful carnal knowledge of girls under the age of 13 and 16 years. Under section 220 it is even a defence in the case of a girl under the age of 16 that the accused person believed on reasonable grounds that the girl was of or above the age of 16. Section 223 also deals with cases of having carnal knowledge with a girl under the age of 18 years. Section 224 specifically deals with cases of procuring a woman or girl by threat, intimidation and false pretences in order to have unlawful carnal connection with them; while section 226 deals with cases of any person who detains a woman or girl against her will in order to have carnal connection with her. Section 227 is on conspiracy to induce any woman or girl by false pretence or other fraudulent means in order to have carnal connection with her. These provisions cover any person and are even wider than the narrow scope of offences covered in this bill.
The Penal Code makes diverse provisions covering inducing a girl under the age of 18 and 21 years with intent to having illicit intercourse with her, trafficking in girls under 18 years for purposes of prostitution or immoral purpose, enticing a woman or girl for immoral purposes, rape, etc. (see sections 275, 276, 278, 281, 282).
Section 11 of the Child Rights Act, 2003 protects the dignity of children generally from sexual abuse, abuse on their honour, etc.
The Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 in section 15 prohibits the inducement of persons under the age of 18 years for sexual exploitation of persons by means of deception, coercion or by any other means.
The existing laws, rules and regulations on the incidence have not been proved to be ineffective with palpable dire consequences for learning in these institutions.
The administrations of tertiary institutions have been negligent in the enforcement of extant laws, rules or regulations on the issues.
On the basis of a-f above, the logical conclusion is that:
The bill is discriminatory, selective, spiteful, impulsive, ad hominem, lacks logic and any intellectual base by attacking the character and persons of those in the tertiary institutions as if the act is peculiar to tertiary institutions rather than addressing the issue holistically.
II. ANALYSIS ON THE SPECIFIC PROVISIONS OF THE PROPOSED BILL
Section 4(6) makes provision to a ridiculous extent of wanting to criminalize “whistles”, “winks”, “screams”, “exclaims” or “jokes” by “educators”. This provision might mean converting the universities into a graveyard where “educators” go about in veil-like mannequins to prevent winking. In the first place, what would these acts relate to before they become a crime? By what means would these acts be measured to be successfully prosecuted? These provisions have no more than amusement values because they are immeasurable and therefore have no reasonable grounds upon which they could be successfully prosecuted. The other part of subsection (6) that seeks to criminalize making sexually complimentary or uncomplimentary remarks about a student’s physique will suffer from vagueness which should not be allowed in serious legislative proposition because of the difficulty of determining what constitutes “sexually complimentary or uncomplimentary remarks about the physique of a lady”.
A “prospective student” is not a student of a tertiary institution by any stretch of imagination but only a candidate; and there are established redress mechanisms in tertiary institutions to discipline any erring staff who is alleged to have sexually harassed any candidate in the course of performing their official duties. Besides, all matters which are outside the purview of the administration of a tertiary institution are handed over to the appropriate government organ/agency to handle.
The provision in section 4(6) to the effect that it shall not be a defence to any offence created in section 4 that an adult citizen who happens to be a student consented to the offence is legally untenable. This is because it is against the principles of criminal liability and personal autonomy that two persons willingly consent to a sexual act, yet, one party is made criminally liable.
There is no basis for civil action in respect of a trust or fiduciary relationship because, as stated above in the comment on section 4, some of the bases could be on consent and personal autonomy. Acts between consenting adults based on personal autonomy are not deemed criminal under any law.
The provision of section 15 of the bill clearly acknowledges that tertiary institutions have established rules and regulations for the internal administrative discipline of staff in relation to sexual harassment and other forms of misconducts. Section 17 of the bill which also seeks to provide for Institutional Disciplinary Procedure is baseless. The bill does not show any evidence that the outcomes of most of the decisions of internal administrative mechanisms have failed, the bill should die naturally.
The provision of section 15(3) would amount to punishing an offender twice and this would violate the principles of double jeopardy, since tertiary institutions are the creations of laws under which they derive their powers to recruit, promote and discipline staff.
The bill approbates and reprobates by seeking in provision of section 15(4) to allow the courts to take into consideration, in passing sentence on an educator, the nature of sanctions that have already been imposed by internal
administrative or disciplinary mechanism but provides under section 15(1) that no disciplinary proceedings could be continued by virtue of the commencement of a criminal proceeding. Also, paragraph (c) is contrary to the provision of section 11 of the bill which prohibits the option of fine even in clear deserving cases. This is yet another instance of contradiction in the bill.
III. A PUZZLE
We are puzzled by the seeming equation of “Sexual harassment” with “Sexual Intercourse” in this Bill. We draw attention to the following definitions:
‘Harassment’: ‘bothering’, ‘irking’, ‘provocation’, ‘vexing’, (Merriam – Webster’s College Thesaurus).
“Harassment”: “consisting of misplaced, unwelcome and often offensive sexual advances or remarks, especially from a senior colleague, male or female, in the work place.”
Any concept employed to regulate proper and expunge improper dealings in all institutions must be
Clearly defined, unambiguous, and clearly applicable
Used with regard to the moral principle of fairness.
From the standpoint of (i) and (ii), the proposed Bill falls far short of being satisfactory:
First, regarding fairness, is sexual harassment unidirectional? Second, if sexual harassment is morally offensive, we think it does not matter where, and who are sexually harassed: lecturers or students, female workers, teachers, vendors on the street; law makers, etc. Again, are the females always at the receiving end? What of males?
For the avoidance of doubt, we are here not justifying harassing female students and workers. We are only saying that a serious approach would show concern for sexual harassment in general. The position is not evidenced by research work which would give more or less accurate data on the extent and depth of the phenomenon of sexual harassment in general, in the educational institutions of all types, their comparison with government institutions, e.g. in the National Assembly, Ministries, parastatals etc.
According to Chambers 21st Century Dictionary, “Harass” means;
To pester, torment or trouble someone by continually questioning or attacking them,
To make frequent sudden attacks on an enemy.
Harassment: from French ‘harasser’ to HARRY, perhaps a derivative form of ‘harer’ to set a dog on.
Given this definition, harassment need not be sexual. Harassment is sexual when the continual questioning, attacking, threatening is for the sake of extracting a sexual act. There are allegations that this practice exists in the experience of Youth Corpers and workers in the government institutions, including the Senate. Suppose we find male Senators, Members of House of Representatives and State Assembly members, harassing youth corpers, female workers, etc. should there be a special law on sexual harassment in the Senate or House of Representatives, should there be a special law enacted to deal with this?
The bill is dangerous and inimical to the educational institutions, and to the interest of workers in tertiary institutions, as it contains several loose and ambiguous words/terms which could also be used to harass, intimidate, victimize and persecute its targets, especially lecturers through false accusations.
While our Union would not condone cases of sexual harassment in any form, we submit that the Bill should fail because it is unwarranted, jurisprudentially weak, a bundle of contradictions, and has no probative value. Most important, the University and its organs, especially the Senate, have the responsibility to implement the Statutes of the Universities faithfully and scrupulously with University autonomy. For us in ASUU, this is the right path to solving the problem of sexual harassment.
17th February, 2020