By Sam Omotoso, Esq
Introduction
Ada is a beautiful slim tall light skinned girl from the South Eastern part of Nigeria, schooling in a higher institution in Nigeria. Dr Onisekuse, her lecturer tells her to see him after his class. She did out of respect, also having it in mind to ask him why she failed his course last year after doing everything humanly possible to pass. Sitting down across the table Dr. Onisekuse, biting his lips and scrutinizing her body after making her pick invisible things from the dusty rug on the floor of his office says; “Hey honey if you want to pass my course, do what other smart girls are doing”.
Ada story sounds familiar right? Or maybe you will remember Monica Osagie a master’s degree student who alleged her professor asked her for sex to upgrade her marks; she granted CNN an exclusive interview about the allegations. The lecturer, Richard Akindele, was fired from the Obafemi Awolowo University after the interview, which drew public discourse to the case. Akindele was jailed for two years for demanding sexual benefits from the student in December 2018.
The Anti-Sexual Harassment Act 2020
Senate Deputy President Senator Ovie Omo-Agege while sponsoring the bill which was passed in July 2020 stated that “Sexual harassment in our campuses is a repugnant challenge to our values as a people. For far too long, sexual predators masquerading as educators have plied the corridors of our nation’s higher institutions unchecked.”
In my candid opinion, this Act is definitely a step in the right direction as it has handed over a very redoubtable and efficacious shovel that can be used to bury sexual harassment in higher institutions in Nigeria permanently. Although this Act cannot bring an end to sexual harassment in higher institutions; it is at best a very good means to an end. I will address that in the concluding part of this article.
The focus of this short article is to demystify and analyze (break into simple and understandable pieces) the Act so that anyone can understand it in its entirety in a couple of minutes.
Analyzing The Anti-Sexual Harassment Act 2020
The objective of the Act as enunciated in section 1 seeks to-
Promote and protect ethical standards in tertiary education, the sanctity of the student-educator fiduciary relationship of authority, dependency and trust and respect for human dignity in tertiary educational institutions, by providing for:
(1) Protection of students against sexual harassment by educators in tertiary educational institutions;
(2) Prevention of sexual harassment of students by educators in tertiary educational institutions; and
(3) Redressal of complaints of sexual harassment of students by educators in tertiary educational Institutions.
Section 3 makes it clear that – To uphold the Objective of the Anti Sexual Harassment Act (hereinafter referred to as the Act), an educator shall observe a reasonable duty of care to every student by not taking advantage of a student or his/her relationship with a student for personal gains such as financial gains or sending the student on errands that goes beyond student/educator’s relationship, sexual 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.
According to the interpretation section, an educator for the purpose of the Act means “ every employee of a tertiary educational institution including all academic and non-academic staff, or a faculty or non-faculty member of a tertiary educational institution including a professor, lecturer, graduate assistant, post-doctoral fellow or associate serving as a full-time or part-time instructor or a teaching fellow in similar institutional roles who teaches, educates or trains students or who provides professional educational services; or a staff or member of any tertiary educational institution who may have authority over or a mentoring relationship with any student and also includes, coaches, supervisors of student employees, advisors and directors of student organizations, students’ residential fellows, and persons who advise, mentor, or evaluate students or any person who oversees any aspect of any student’s academic work.”
The Act went further to expressly provide the offences in section 4 and prescribe the accompanying punishments in sections 11 and 12. For clarity and easy discernment I will consider sections 4, 11 and 12 concomitantly. The offences and punishments are as follows:-
(1) An educator who has sexual intercourse with a student or demands for sex from a student or a prospective student; 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 5 years, without an option of a fine.
(2) An educator who intimidates or creates a hostile or offensive environment for the student by soliciting for sex from the student or making sexual advances towards the student; 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 5 years, without an option of a fine.
(3) An educator who directs or induces another person to commit any act of sexual harassment under this Act, or cooperates in the commission of sexual harassment by another person without which it would not have been committed; 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 5 years, without an option of a fine.
(4) An educator who grabs, hugs, kisses, rubs or 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 shall be liable on conviction to imprisonment term of up to 5 years but not less than 2 years, without an option of a fine.
(5) An educator who displays, gives or sends by hand or courier or electronic or any other means naked or sexually explicit pictures or videos or sex related objects to a student; is guilty of an offence and shall be liable on conviction to imprisonment term of up to 5 years but not less than 2 years, without an option of a fine.
(6) An educator who whistles or winks at a student or screams or exclaims or jokes or makes sexually complimentary or uncomplimentary remarks about a student’s physique or stalks a student is guilty of an offence and shall be liable on conviction to imprisonment term of up to 5 years but not less than 2 years, without an option of a fine.
The only defense for the six offences as highlighted above is where the Lecturer and student are “legally married”. To emphasize on the provisions of section 5, It will therefore be appropriate to recall the maxim “Al verbi legis non est residendum” which means from the clear provisions of the law there shall not be allowed any deviation.
The most relevant question at this point is – what can a student who falls victim of any of the offences as listed above do?. The Act categorically spells out the answers to this question. The student has three options-
OPTION 1 In Accordance with section 8-10 of this Act, the student can-
COMMENCE A CRIMINAL PROCEEDINGS-
- A written Sexual Harassment Petition complaining of the offence or felony of sexual harassment against an educator may be filed or made by a student or by a student’s representative who may be a relative, a guardian, or a lawyer of the student, or any person who has interest in the wellbeing of the student to the Nigerian Police Force, or the Attorney-General (of State of Federation depending on the location) who shall take necessary measures to prosecute the educator in accordance with the provisions of this Act.
- A copy of the written Sexual Harassment Petition complaining of sexual harassment in Clause 8 of this Act shall be delivered by the student or the student’s representative to both the administrative head and Secretary of the Independent Sexual Harassment Committee of the affected institution for record purposes and such actions that may be required under this Act.
- Criminal proceedings shall commence or be deemed to have commenced under this Act when a charge has been filed in Court (State High Court of Federal High Court) and the processes served on an educator who is alleged to have committed a sexual harassment offence under this Act.
OPTION 2 In Accordance with sections 13-14 of this Act
COMMENCE A CIVIL ACTION FOR BREACH OF FIDUCIARY DUTY-
Sections 13 and 14 makes it clear that the student has the right to institute a civil suit on the educator for breach of fiduciary duty as outlined in sections 3. Hence where an educator takes advantage of a student or his/her relationship with a student for personal gains such as financial gains or sending the student on errands that goes beyond student/educator’s relationship, sexual 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, such a student can bring a civil suit against the educator for Breach of Fiduciary duty.
OPTION 3 – ALLOWING THE INDEPENDENT SEXUAL HARASSMENT PROHIBITION COMMITTEE OF THE INSTITUTION TO HANDLE THE COMPLAINT
15(2) provides that Where a student makes a Sexual Harassment Complaint against an educator, an institution’s Independent Sexual Harassment Prohibition Committee established under this Act shall investigate, determine and render a final decision on the merits of the complaint in line with the provisions of this Act.
However the decision shall not in any way invalidate the decision of the court or stall proceedings where a civil or criminal suit has been instituted against the educator.
Considering the weight of the offences as provided in this Act, and the implication it can have on the reputation of the educator, the Act is was extensive enough to contain a shield for the educators where they are falsely accused. This is fastidiously contained in section 21 of the Act. It provides thus-
“Where at the completion of an investigation into a Sexual Harassment Complaint, an Independent Sexual 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 sexual 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 Act”
Finally, also worth considering is the fact that students could get victimized by the colleagues of the accused educator. The Act also covered this gap by establishing Protection of Students from Victimization in section 23. “The administrative head of an institution shall ensure that a student who makes a Sexual Harassment Complaint under this Act is adequately protected and not subjected to any form of victimization by the educator who is complained against or any other educator or person within the institution or in another institution.” This implies that the onus of protecting the student from victimization rests on the vice chancellor of a university, a rector of a polytechnic/monotechnic, a provost of a college of education or any officer who is the chief executive officer of any tertiary academic institution or any person acting in that capacity. How practicable this is, is a discourse for another day.
Conclusion
I stated earlier that this Act cannot bring an end to sexual harassment in higher institutions; it is at best a very good means to an end. This is because like several already enacted laws, if the students do not take advantage of the provisions contained therein, the Act will at best be an Orchard with ripe fruits left to waste away. Students will have to boldly step out like Monica Osagie and bring any offender to book by relying on the juicy provisions of this Act.
