By Ouma and Muthoni
Kenya is undergoing radical changes at national and local levels. All over the country, there is talk about the new Constitution of Kenya (CoK) and its potential to usher in a new political and social order.
While experience from other countries has precedents for this kind of optimistic discourse, there is need to undertake a more detailed analysis in order to understand the real benefits of these changes.
In any case, there is no doubt more women have been getting access to formal employment and other relations of income in the last decade courtesy of progressive laws, affirmative action and their own competitiveness.
The question, however, is whether these changes are yielding tangible improvements in both the condition and position of women workers. By condition, we mean change that improves the material well-being and overall worth of an individual.
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Change in position on the other hand means increased capability of an individual to enjoy their citizenship.
At the workplace, this is often expressed through processes such as Collective Bargaining and the general ability of workers to express themselves or be heard as members of trade unions.
One area that remains a major concern at the work place is the fact that women workers do not enjoy freedom over their bodies.
Although there are men who often feel sexually harassed, it is women who tend to be most affected through actions that encompass: unwelcome sexual advances, demands for sexual favours and suggestive verbal or physical conduct where submission to, or rejection of, such advances affect the individual’s employment status.
These actions of affront to the woman’s body and sexuality are often referred to as sexual harassment.
They are broadly words or actions which are sexual in nature and which, inevitably, preclude someone from carrying out his or her work to the best of his or her ability.
While workers and employers know sexual harassment is inappropriate and unacceptable, it is extremely uncommon as a subject of litigation at the industrial court and does not feature during Collective Bargain negotiations.
And, indeed, while sexual harassment is a problem that is universally faced by workers all over the world, women in lower rungs of work have to endure it more often.
Worse still, at the work place, actions and remarks which demean and violate women have been normalised. These include verbal forms of sexual harassment through inappropriate jokes, sexual remarks and sexual teasing and touching.
Demands or pressure for sexual favors constitute only a small percentage of complaints. At the same time, while employers and supervisors are culpable in any sexual harassment that takes place in the place of work, a majority of forms of harassment that tend to be normalised involve co-worker, rather than supervisory, harassment.
What Workers Want
In the wake of numerous standards of legal accountability such as the Sexual Offences Act 2006, Constitution of Kenya 2010 and international discourse that disallow gender-based discrimination, it has become apparent that adequate information is now needed.
To establish the trends of sexual harassment in Kenya, we conducted a study in Naivasha, Thika and Ruiru in 17 companies which differ in size, ownership, location, certification (or lack of it), unionised and not unionised.
However, only in only 15 farms did the management co-operate fully. A total of 35 women workers were interviewed, alongside seven male shop stewards and 15 trade unionists from different unions, two women managers and 13 women supervisors from 15 companies/farms.
As many women find their way to the work place, employers have had to pay more attention to the subject of sexual harassment even if it is at the level of writing polices.
However, just as has been the case with codes of practice, the trend tends to be toward rule compliance rather than ensuring that there is effective protection of women workers against harassment and discrimination at the workplace.
Workers have often reported that employers still have much responsibility in ensuring that the work place is safe and promotes equity.
To get our way out of this: there should be adequate provisions to punish employers where egregious harassment occurs under their watch; the Sexual Offences Act should permit individual supervisory liability for harassment, and employees and trade unions should consider sexual harassment as an agenda for their work place collective bargain negotiations.
Taken together, these changes might give employers the incentive to aim higher than mere compliance and towards success.
In addition, we suggest that some non-doctrinal efforts that may also contribute to the reduction or elimination of workplace harassment by making it clear that sexual harassment is criminal such that the consequences for the perpetrator are so dire that one does not even dare think of it.
Steve Ouma is Executive Director of Pamoja Trust and President of Labour Rights Centre while Eunice Muthoni is Secretary-General and Co-ordinator of Workers Rights Watch.