By Terry Ombati
"I once thought of hanging myself, but I thought my children would suffer. It's torture. He wants to sleep with you, then you get a job. So you are forced to accept somebody because of work. If you do not do that, you will lose your job and have no income."[i]Such is the predicament of women in tea plantations in Kenya who work to put food on the table, send their children to school and later come home wholeheartedly to care for them.
An undercover investigation by the BBC Panorama and BBC Africa Eye has brought to light sexual abuse of workers of British-owned tea farms in Kenya. The interviewed victims allege that managers demand sex in return for jobs, lighter work duties or the renewal of their employment contracts. There are allegations that some fell pregnant, while others were infected with HIV. One supervisor is even accused of raping a 14-year-old girl who was living at one of the plantations. This is not just about one industry, but rather a statistic illustration of the prevalent issue of sexual harassment in all industries.
The Constitution of Kenya 2010 provides every worker with the right to reasonable working conditions, which includes an environment devoid of sexual harassment.[ii] This human right provision warrants that every individual is recognised as human, with the inherent right to dignity.[iii] Courts have reasoned that sexual harassment is a serious form of discrimination across the world that has undermined the dignity of women and men.[iv]
The Employment Act addresses sexual harassment at the workplace as encompassing an expressed or implied promise of preferential treatment in employment or a threat to the present or future status of the employee.[v]The Act mandates the issuance of a policy statement on sexual harassment where an employer employs more than twenty or more employees.[vi]This provision seems non-coercive because of the lack of a legal sanction in case of contravention by any employer. The Sexual Offences Act[vii] as well as the Penal Code[viii] also contain provisions on sexual harassment.
With all these laws in place alongside an entity's policies, one would safely presume that sexual favours in exchange of work would be impossible. It is however clear that laws are not a sufficient tool to combat sexual harassment in tea plantations. What might be the gaps in achieving a fully safe environment devoid of sexual abuse in tea plantations?
The Sexual Offences Act has dealt much with the power-play in an employer-employee relationship by underscoring that sexual harassment occurs where authority is in leadership positions. It has however limited itself by failing to foresee sexual harassment amongst peers or from a junior to a senior;[ix] even among the workers at the tea plantations. Legislators need to go further and acknowledge that the power dynamic in sexual harassment is not only foreseen in positions of authority and this will ensure that we have a society that embraces equality and upholds the respect of dignity.
The reporting mechanisms for the tea plantations are weak, neither does the response to the sexual harassment victims provide tangible solutions.[x]However much institutions provide reporting mechanisms for sexual harassment at the workplace, the big question remains on the effectiveness of such mechanisms. What action do employers take? A case in point would be the tea plantation saga where the companies claimed to have a 'zero-tolerance approach'. Although the alleged perpetrators were suspended,[xi]It might be safely presumed that the suspension might have been warranted by the limelight. Kenya has not ratified the 2019 International Labour Organization Convention 190 on the elimination of violence and harassment in workplaces. The Preamble to the Convention obligates its members to promote an environment of zero tolerance to sexual harassment and that all actors in the world of work must address violence and harassment.[xii]Kenya should move with speed to ratify the Convention to prevent sexual abuse in the tea plantations.
Mechanisms of punishing perpetrators are deficient. The lives of sexual harassment victims at the tea plantations go on as if nothing happened. They are right-holders just like everyone else and similarly have the inherent right to dignity and the right to access of justice. As much as the perpetrators of the sexual harassment should be personally liable, entities should as well be sanctioned for abandoning their responsibility of providing a safe and comfortable working environment.[xiii] This has been the commendable step that courts in jurisdictions such as Australia have taken.[xiv] The Director of Public Prosecutions Noordin Haji wrote to the Inspector General of Police directing him to commence investigations into allegations of sexual exploitation and abuse in the tea plantations,[xv]this should be the starting point of tightening sexual harassment policies.
The hashtag '#MeToo' was in 2017 used on the internet to draw attention to the problem of sexual harassment at the workplace. It was used to empower sexually assaulted people through empathy, solidarity, and strength in numbers, by clearly illustrating how many have experienced sexual assault and harassment, especially in the workplace.[xvi]If the said campaign was to take place in Kenya, the question would be whether there is a sufficient framework for such victims to access justice. The answers might vary. This article takes the position that the framework might not be enough considering that even though the Constitution guarantees the right of access to justice,[xvii] impediments like high legal fees and insufficient punishment and reporting mechanisms might slow down this right in pursuit of justice.
Laws and policies within the workplace alone are not enough. Concrete action to protect women and ensure their safety must be taken. Ending sexual harassment at work is an indispensable stride to decent work.
[i] Sex for Work: The True Cost of Our Tea- BBC Africa Eye Documentary, BBC News Africa, 20 February 2023, 3:47 - 4:17 —<https://www.youtube.com/watch?v=1wMdnCx6eUc&t=2234s>on 27 February 2023.
[ii] Constitution of Kenya (2010), Article 41(2)(b).
[iii] Constitution of Kenya (2010), Article 28.
[iv] P.O v Board of Trustees, AF & 2 Others, Cause Number 927 Of 2010, Award of the Industrial Court of Kenya, (2014) eKLR, para 30.
[v] Employment Act (No.10 of 2007), Section 6(1).
[vi] Employment Act (No.10 of 2007), Section 6(2).
[vii] Sexual Offences Act ( No.3 of 2006), Section 23.
[viii] Penal Code( No. 81 of 1948), Section 251A.
[ix] Sexual Offences Act ( No.3 of 2006), Section 23.
[x] Sex for Work: The True Cost of Our Tea- BBC Africa Eye Documentary, BBC News Africa, 20 February 2023, 29:10 - 29:38 —<https://www.youtube.com/watch?v=1wMdnCx6eUc&t=2234s>on 27 February 2023.
[xi] Vincent Owino, 'Kenya starts probe into sexual harassment claims at UK tea firms' The East African, 23 February 2023.<https://www.theeastafrican.co.ke/tea/news/east-africa/kenya-probes-sex-abuse-claims-at-uk-tea-firms4134216#:~:text=The%20BBC%20Eye%20documentary%20revealed,brands%20to%20CVC%20Capital%20Partners.>on 7 March 2023.
[xii]<https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:3999810:NO>on 7 March 2023.
[xiii] Employment Act (No.11 of 2007), Section 6(3).
[xiv] STU v JKL (Qld) Pty Ltd & Ors (2016) QCAT 505.
[xv] Osoro Jnr, 'DPP Haji gives police 7 days to investigate allegations of sexual abuse at Unilever, Finlays tea plantations' 22 February2023<https://www.pd.co.ke/news/haji-gives-police-7-days-to-investigate-allegations-of-sexual-abuse-at-unilever-finlays-tea-plantations-170407/>on 7 March 2023.
[xvi] Abby Ohlheiser, 'The woman behind 'Me Too' knew the power of the phrase when she created it — 10 years ago' October 19, 2017<https://www.washingtonpost.com/news/the-intersect/wp/2017/10/19/the-woman-behind-me-too-knew-the-power-of-the-phrase-when-she-created-it-10-years-ago/>on 27 February 2023.
[xvii] Constitution of Kenya (2010), Article 48.
