Employee protection unit to be formed to tackle sex pests in the Judiciary

Supreme Court Judge Njoki Ndung’u. [File, Standard]

A new unit will be formed to hunt sex pests in the Judiciary. This follows a recommendation by the Policies, Implementation and Oversight Committee to take away the role of fighting sexual harassment from the office of the Judiciary Ombudsperson.

The Supreme Court Judge Njoki Ndung’u-led committee proposed the formation of an employee protection unit, which will be under the office of Chief Justice Martha Koome.

The Judicial Service Commission approved the proposal, paving way for a sex pest hunter in the third arm of government. 

“The Unit will also provide effective and confidential procedures for resolution of complaints related to sexual harassment and prevention standards,” a statement sent to media houses by the commission read.

The move to have a unit to deal with sexual harassment is a radical move from a controversial code of conduct that had been gazetted seven years ago.

The judicial code of conduct and ethics had opened a can of worms after allowing consensual sex within the Judiciary and opening relationship bracket beyond husband and wife affair. Although the code published in a special Gazette issue condemned sexual harassment by a judicial officer on a colleague or any other person in the workplace or in a social situation, it ruled out sexual offence allegations in situations where both parties had mutually consented to sexual involvement.

“Consensual sexual behaviour that is based on mutual attraction and reciprocated shall not constitute sexual harassment,” the code read.

But even more intriguing was the distinction in the definition of who amounts to a spouse to a judge, as compared to a judicial officer.

Whereas the code of conduct and ethics was explicit that a judge’s spouse “means wife or husband of a judge married under any recognised system of law in Kenya”, it expanded the scope as to who would be considered a spouse to a judicial officer.

A judicial officer’s spouse includes “any person who is in a relationship with the judicial officer which, but for absence of marriage, has the character of a relationship between two persons who are married”.

The code was, however, explicit that suggestive gestures, jokes or comments, text messages, videos and pictures will land the officers in the wrong hands of the law because they have been clustered as part of sexual harassment. Suggestive noises too will not be allowed.

Making intentional and careless physical contact that is sensual in nature will not be allowed.

The definition of spouse and sexual harassment clauses are new, as they were not in the old law on ethics and conduct.

In the old code published in 2003, sexual harassment had been left out and a blanket definition of a judicial officer’s family given.

In the last financial year, at least 4.5 per cent of the disciplinary cases against judicial staff involved sexual harassment. However, Judiciary did not record any sexual harassment case against judicial officers and Judges. At the same time, Status of the Judiciary Report (SOJAR), 2020 had five per cent of employees had experienced sexual harassment.