Bill On Sexual Harassment
Ovie Omo-Agege
Introduction
First, let me thank the Vice Chancellor and the management, staff and students of OAU for organising this important event on ‘Finding Safe Spaces for Female Students in Nigerian Universities’. Also, my special gratitude goes to my dear Brother and Friend, Mr. Olusegun Adeniyi, for the opportunity to be part of today’s conversation.
My intervention here today is focused mainly on the need for the Sexual Harassment of Students in Tertiary Educational Institutions (Prohibition) Bill, 2019 (Senate Bill (SB) 77), which I am privileged to sponsor with the support of virtually all Distinguished Senators of the Federal Republic in the 9th Senate. The Bill was recently passed with unanimous consent in the Senate. It is now in the House of Representatives for further legislative action.
Permit me to situate my intervention within the context of the succinct statement of the history of sexual harassment as culled from an article in the ‘Law Journal BD’ as follows:
“The term “sexual harassment” first came into use in the late 1970s in the United States. The term’s origins are generally traced to a course on women and work taught by Lin Farley at Cornell University. In 1979, Catherine MacKinnon, a legal scholar from the United States, made the first argument that sexual harassment is a form of sex discrimination prohibited by the constitution and civil rights laws of the United States. Since then many international bodies, national legislatures and courts have prohibited sexual harassment but have not agreed on a universal definition of the term.
“The United Nations General Recommendation 19 to the “Convention on the Elimination of all Forms of Discrimination Against Women” reaffirms these elements by defining sexual harassment to include “such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions.”
The Bill is an attempt by the National Assembly to align Nigeria with the comity of nations in dealing decisively with Sexual Harassment in our Tertiary educational institutions.
The Mischief which the Bill Seeks to Cure
Let me quickly provide some reported cases and perspectives in Nigeria as an added context to sexual predation on our campuses:
a On November 27, 1988, the editorial of the Sunday Tribune stated in part that: ‘Sexual harassment is rampant in all Nigerian institutions of higher learning. In some places, it has almost become an accepted fact that the female student must submit.’
b In 2013, the National Universities Commission (NUC) stated in a report that, ‘Sexual harassment seems to rank extremely very high among corrupt practices uncovered in our universities.”
c In 2014, the International Journal of Applied Psychology noted that:
“… [I]n Nigeria, sex for grades in tertiary institutions is a reality and the male lecturers in particular, perceive themselves as thin (sic) gods and such unprofessional behaviour can be perpetuated unchecked.”
d In 2016, the Vanguard published that: “… [O]ur campuses of supposed higher learning are more or less veritable sexual jungles where academic staff … are prowling predators. Sex for marks or other favours has become so entrenched as to have acquired the status of a law of nature. Put bluntly, it is as if our university, polytechnic and college of education campuses are sex colonies where rape or any other form of coerced copulation and intimacy may be practised without sanctions.
“… Always, the sex-obsessed lecturer wielding his illegitimate power asks drily: Do you want to pass this course to graduate, or not?”
e Not long ago, the world was shocked when the British Broadcasting Corporation (BBC) aired a shameful tale of a supposed pastor and lecturer, who allegedly abused his office for sexual gains.
f Many female students, including a Miss Shola of University of Ibadan (as reported by Vanguard), Hamzat Kaothar of University of Abuja, and Chinelo Emenike of Imo State University (as reported by Premium Times), have been prevented from graduating on time because they were brazenly victimized for daring to reject amoral advances by lecturers.
g In all of these, Dr. Adekunle Idris, a former Chairman of ASUU at the Lagos State University (Premium Times) admitted with courageous frankness that: “The truth of the matter is for now we don’t have specific guidance in respect to sanctions (for sexual harassment of students). What we are doing is to continually sensitise our members … to ensure that best practises are always adhered … . It is only a matter of moral suasion … .”
This distressing chronicle of sexual harassment, impunity and predation on our campuses has spurred the National Assembly to action. As a parent, I am appalled by these happenings. This indecency does not represent our values as a people. As a Senator of the Federal Republic, I refuse to allow this pandemic to ruin our academic standards or define and destroy the reputation of the great majority of decent academics on our campuses. This is the main reason why I introduced the Sexual Harassment (Prohibition) Bill, first in 2016 and again in 2019.
Undoubtedly, the scourge of sexual harassment with its repugnant subculture of sex-for-grades in our tertiary institutions is an extraordinary mischief impacting negatively on our educational standards. Permit me to echo the succinct statement from the article in the Law Journal BD: “American scholars maintain that “sexual harassment often has a serious and negative impact on women’s physical and emotional health, and the more severe the harassment, the more severe the reaction. The reactions frequently reported by women include anxiety, depression, sleep disturbance, weight loss or gain, loss of appetite, and headaches. Researchers have also found that there is a link between sexual harassment and Post-Traumatic Stress Disorder.”
The foregoing really underscores the debilitating impact of sexual harassment and how it impairs the standard and quality of education in our tertiary educational institutions.
Item 60(e) of the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) specifically empowers the National Assembly to make laws “prescribing minimum standards of education”. Sexual harassment on our campuses is a hideous attack on our educational standards and the Bill is sponsored to stop it.
Indeed, the Bill (SB77) seeks to protect the right of students to learn peaceably without any form of sexual harassment. This is supported by section 45(1) of the Constitution which says, “(1) Nothing in sections 37, 38, 39 and 40 … of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society … (b) for the purpose of protecting the rights and freedom of other persons”.
Giving judicial imprimatur to the legislative power of the National Assembly, the Supreme Court in ATTORNEY GENERAL OF ONDO STATE V ATTORNEY GENERAL OF THE FEDERATION [2002] NWLR (PT 772) 222 Per UWAIFO, J.S.C. at pages 408-409, paragraphs H-C, held that: “… [T]here may be occasion, and probably always would, when what appears a local problem assumes such a proportion as to become a matter of concern to a federal country as a whole. In such a case it may turn out to be inevitable to regard the matter as affecting the peace, order and good government of the country which ought to be so addressed by means of a uniform law.”
Current Legal Regime
In sponsoring this Bill, we are not unmindful of some legislations dealing with various forms of sexual assaults. Section 282 to 285 of the Penal Code covers some of these offences, including “Rape and Unnatural and Indecent Offences” in the Northern part of the country. Similarly, section 357 to 363 of the Criminal Code deals with related offences in the Southern part of the country under the heading of “Assaults on Females”.
There is also the Violence Against Persons (Prohibition) (VAPP) Act, 2015 which has now been domesticated in at least 13 States including Lagos, Oyo, Ogun, Osun, Ekiti, Edo, Anambra, Enugu, Ebonyi, Benue, Cross River, Kaduna, and Plateau. Amongst others, the VAPP Act rightly defines rape much more broadly than the Codes. It provides stiffer penalties for offences against a person’s body, including gang rape and incest. The Act established the Sex Offenders’ Register as a major innovation. There is also the Child Rights Act which forbids sex with a child – same being statutory rape. It has been domesticated in about 25 States.
Why then the Sexual Harassment (Prohibition) Bill?
The Bill is a critical component in the fight against sexual harassment, particularly as there is growing recognition of sexual harassment as a form of violence against women. States are obligated under international law to take effective steps to protect women from violence and to hold harassers and/or their employers accountable for sexual harassment in the workplace.
Generally, a victim’s informed and voluntary consent is a defence to a charge of rape and some other sex-related offences under the Criminal and Penal Codes and the VAPP Act. But consent is no defence if the victim is a minor. The very act (actus reus) proves the crime, without more. The prosecutor has no burden to prove the guilty mind (mens rea) of the suspect. This is statutory rape for which strict liability attaches. Significantly, from a strictly technical perspective, these extant legislations do not properly cover ‘sexual harassment’ though it is recognised globally as a distinct species of sexual offence. Many alleged offenders have gotten away with rape and sexual harassment on the pretext of consent by their victims.
This raises a fundamental question of whether the defence of informed and voluntary consent to the charge of rape or sexual harassment should apply in relation to a student victim given the UNIQUE and IMBALANCED nature of the student-educator relationship of AUTHORITY, DEPENDENCY AND TRUST. On this, the Senate has carefully considered and determined that based on the legal principle of in loco parentis, sexual harassment of students by any educator qualifies as statutory rape to which strict liability must attach. This is exactly what we have done by passing the Bill unanimously. But I should add that the Bill does not deal with only making carnal knowledge of a student by an educator a strict liability offence. It comprehends sexual harassment in all its manifestations and imposes strict liability penal sanctions on the harasser.
By the in loco parentis principle, the law confers a quasi-parental status on the educator and recognises his/her fiduciary authority over the student. Conversely, the student depends on the educator for career development for a better future. Inherent in this view is the fact that the student infinitely trusts the educator like a good parent to protect her/his best interest always. The law does not expect the educator to exploit this relationship for direct or indirect benefits at the expense of the student’s proper development.
Like a minor, a student is vulnerable in the student-educator relationship, irrespective of age. If a predator lecturer exploits this vulnerability beneficially, that reprehensible act itself must be penalised with or without consent, as there cannot be informed and voluntary consent by a student who is held hostage by an educator. By removing mutual consent between the student and educator as a defence, this Bill defines any proven act of sexual harassment as a strict liability offence.
The uniqueness of the student-educator relationship is the predicate of all laws prohibiting sexual harassment in tertiary institutions globally. Nigeria has chosen to be part of this positive trend to protect our students. We cannot by indifference or complacency allow this relationship to be abused without consequences in Nigeria.
‘Targeting’ Educators
Our legislative leadership on this pandemic has been mischaracterised by some as an unfriendly act against our educators. We reject that misrepresentation. It is entirely false. We have no reason whatsoever to fight our lecturers and teachers who nurtured some of us to become the leaders that we are today. On the contrary, the Bill is a child of necessity to stop sexual predators on our campuses. It is meant to rid our educational community of sexual harassers, while protecting the good reputation of the vast majority of our educators who are not sexual predators.
Indeed, there is nothing new about enacting a law specifically against sexual harassment in tertiary institutions. On this point, I respectfully cite a few global examples:
a In America, the Honour Code, Title 7 of the Civil Rights Act of 1964 and Title 9 of the Higher Education Amendments Act of 1972 prohibit sexual harassment of students in tertiary institutions by faculty members, and it is a criminal offence to violate these instruments;
b In the United Kingdom, it is a serious crime under sections 16 – 24 of the Sexual Offenses Act ,2003 for a person in the position off an educator to exploit the student-educator relationship for sexual benefit because, it is a ‘relationship where there is an IMBALANCE OF POWER AND RESPONSIBILITY ’;
c In Queensland, Australia, the law also expressly forbids sexual intimacy and sexual harassment in the student-educator relationship;
d In South Africa, it is an offence under Section 17 of the Employment of Educators Act, 1998 (as amended) for an educator to have a sexual relationship with a student; and
e In fact, 2018 World Bank Group’s Women (Business and the Law) data show that several African countries have laws that specifically penalize sexual harassment in educational institutions.
Clearly, the countries mentioned above designed and fitted their laws against sexual harassment of students to where the problem is – the academic institutions. This does not mean that laws cannot be made for other sectors of society where a similar mischief rises to the level of repugnancy now pervading on our campuses. In any case, the Constitution expressly grants the National Assembly the authority to act firmly to protect our standards of education and pass laws for the order peace and good governance of Nigeria.
Sexual Harassment in our tertiary educational institution is a national problem that requires a uniform national response to combat and eliminate in every tertiary educational institution in any part of the country. We will not shirk that solemn duty.
Conclusion
Mr. Vice President, Ladies and Gentlemen, thank you sincerely for the opportunity to share my perspective on this issue. All students, especially the female students, deserve tertiary learning environments devoid of sexual harassments. Even leading academics agree that we are on the right track. As a former President of the American University of Nigeria (AUN), Dr. Margee Ensign, once said, “I am glad this is finally happening in Nigeria and I can’t imagine anyone would be opposed to this legislation, … I think it is a defining moment for Nigerians and I am proud of the many senators who co-sponsor the new legislation. I call on all vice chancellors to join us at the AUN and lobby for the passage of this bill.” (Premium Times) This is the right spirit for this Bill.
Thank you for listening. God bless you all and our dear Nation Nigeria.
. Being the Keynote Address by the Deputy President of the Senate, Senator Ovie Omo-Agege, during a webinar, titled: “Finding safe spaces for female students in Nigerian Universities,” hosted by Obafemi Awolowo University, Ile Ife, Osun State on September 9, 2020.
