INTERNATIONAL LEGAL FRAMEWORK ON SEXUAL HARASSMENT IN THE
WORKPLACE
Definition
Sexual harassment in the workplace is defined as: unwelcome conduct of a sexual nature that
creates an intimidating, hostile, or offensive work environment, or interferes with an individual's
work performance, it undermines the fundamental principles of equality, dignity, and respect in
employment settings.
1. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR), 1948
Article 23: Right to just and favorable work conditions.
Article 7: Equality before the law, prohibiting discrimination.
Relevance: Establishes foundational workplace rights.
2. CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (CEDAW), 1979
Adopted in 1979 when awareness of sexual harassment at the workplace was beginning to
emerge, thus it does not contain a specific prohibition. It obligates signatory states to take
measures to prevent and redress gender-based discrimination, including sexual harassment, in the
workplace and other spheres of life in article 11(1) (f) which grants the right to protection of
health and to safety in working conditions, including the safeguarding of the function of
reproduction.
General Recommendation No. 12 of 1989 requires that state parties should put in place
legislative measures and provide periodic reports on protection of women against all kinds of
violence in everyday life (including sexual violence, abuses in the family, sexual harassment at
the workplace, etc.);
General Recommendation No. 19 (1992): Recognizes that gender-based violence (which
includes sexual harassment) against women occurs in all spaces and spheres of human
interaction, whether public or private. These include the family, the community, the public
spaces, the workplace, leisure, politics, sport, health services, educational settings and their
redefinition through technology-mediated environments. It includes acts and omissions. An
example of an omission is not drafting a sexual harassment policy and procedures at the
workplace. This is a preventive measure enshrined in para 39 of the General Recommendation.
There should also be workplace entitlements for women victims/survivors of such violence.
3. UNITED NATIONS FOURTH WORLD CONFERENCE ON WOMEN; BEIJING
DECLARATION AND PLATFORM FOR ACTION
This conference adopted a platform for Action, which includes provisions on sexual harassment
in the workplace.
Paragraph 178 (c); Obligates governments, employers, employees, trade unions and women's
organizations to enforce and enact laws and develop workplace policies against gender
discrimination in the labor market, including legal protection against sexual and racial
harassment.
4. INDIGENOUS AND TRIBAL PEOPLES CONVENTION,1989 (NO. 169)
The convention prohibits sexual harassment in the workplace.
Article 20 (3)(d) of the Convention mandates state organs to take measures that ensure
indigenous people enjoy equal opportunities and equal treatment in employment for men and
women, and protection from sexual harassment.
Obligates governments to do everything possible to prevent any discrimination between workers
belonging to the people to whom the convention applies and other workers.
Kenya has not ratified this treaty.
5. INTERNATIONAL LABOUR ORGANIZATION (ILO) INSTRUMENTS
ILO Convention No. 111 (Discrimination in Employment, 1958); Prohibits discrimination
based on sex.
The convention also requires member states to declare and pursue a national policy designed to
promote equality of opportunity and treatment with the view of eliminating discrimination.
ILO Convention No. 190 (Violence and Harassment, 2019); First treaty explicitly addressing
workplace violence/harassment. It expands the meaning of “gender-based violence and
harassment” to mean violence and harassment directed at persons because of their sex or gender,
or affecting persons of a particular sex or gender disproportionately, and includes sexual
harassment. “Violence and harassment” in the world of work refers to a range of unacceptable
behaviors and practices, or threats thereof, whether a single occurrence or repeated, that aim at,
result in, or are likely to result in physical, psychological, sexual or economic harm, and includes
gender-based violence and harassment, which is stated above. Furthermore, the convention
requires signatories to take into account violence and harassment involving third parties where
applicable.
6. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
Article 7 states the right to fair and favorable working conditions, including a safe and healthy
workplace. This can be broadly interpreted to prohibit sexual harassment, as it creates an unsafe
work environment.
7. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Article 26 prohibits all forms of discrimination, including discrimination on the grounds of sex.
This can be broadly interpreted to mean that any form of sexual harassment linked to gender
discrimination is also prohibited.
8. UN SUSTAINABLE DEVELOPMENT GOALS (SDGS); SDG 5 (GENDER
EQUALITY) & SDG 8 (DECENT WORK):
Call for harassment-free workplaces.
REGIONAL FRAMEWORKS
1. AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS (BANJUL
CHARTER)
Article 15: Right to work under equitable conditions
Article 18(3): Prohibits discrimination against women.
2. PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN
AFRICA (MAPUTO PROTOCOL, 2003)
Article 13: Obliges states to prevent sexual harassment at work.
The ACHR developed GUIDELINES ON COMBATING SEXUAL VIOLENCE AND ITS
CONSEQUENCES IN AFRICA which provided for protection of victims of sexual harassment.
For example, it provides for Protection Orders (Para 27) to cater for victims of Sexual
Harassment. These protection orders must be provided at no cost, and should be available for
immediate protection, for a specified period, regardless of whether a complaint is lodged, legal
prosecution takes place, or the perpetrator of the violence is sentenced. These orders may require
that the perpetrator and the victim may stay away from places where the victim regularly attends
or refraining from contacting the victim. The perpetrator may also be prohibited from possessing
firearms etc.
NATIONAL LEGAL AND POLICY FRAMEWORK GOVERNING SEXUAL
HARASSMENT IN THE WORKPLACE
A) THE CONSTITUTION
Article 27 Freedom form discrimination.
Article 28 which provides for every person’s inherent right to human dignity and to have it
respected and protected.
Article 29 speaks to everyone’s right to freedom and security of the person including the right
not to be deprived of freedom arbitrarily or without just cause and not to be subject to any form
of violence.
Article 31 Right to privacy encompassing the right not to have information relating to their
private affairs unnecessarily revealed.
Article 41 Right to fair labor practices
Article 43 Economic and Social Rights on the right to social security.
Article 47 Right to Fair Administrative Action
B) SEXUAL OFFENCES ACT NO. 3 OF 2006
The Sexual Offences Act provides a legal framework for addressing sexual harassment,
particularly in the workplace.
Section 5(1) of the Act explicitly states what constitutes the offence termed sexual assault- any
person who unlawfully penetrates the genital organs of another person
Section 23(1) goes on to define sexual harassment as “Any person, who being in a position of
authority, or holding a public office, who persistently makes any sexual advances or requests
which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the
offence of sexual harassment”
Section 23(2) places the burden of proof on the victim, stating the necessity to prove in a charge
of sexual harassment that:
(a) the submission or rejection by the person to whom advances or requests are made is
intended to be used as basis of employment or of a decision relevant to the career of the
alleged victim or of a service due to a member of the public in the case of a public
officer;
(b) such advances or requests have the effect of interfering with the alleged victim's work or
educational performance or creating an offensive working or learning environment for
the alleged victim or denial of a service due to the member of the public from a public
office.
C) EMPLOYMENT ACT Cap 226 NO 11 of 2007
Section 6(1) of the Act provides that an employee is sexually harassed if the employer of that
employee or a representative of that employer or a co-worker directly or indirectly requests said
employee for sexual intercourse or any other form of sexual activity that either contains an
implied or express promise of preferential treatment, threat of detrimental treatment in the
workplace or threat of employment status of the employee (whether present or future).
It further states that sexual harassment includes language used whether written or spoken of a
sexual nature, visual material of a sexual nature and physical behavior of a sexual nature which
has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
Section 6(2) requires an employer who has twenty or more employees to issue a policy statement
on sexual harassment, after consulting with the employees or their representative if any.
Section 6(3) provides for the content of the policy statement mentioned in sub-section (2).
Section 6(4) provides for the requirement of an employer to bring to the attention of each person
under their direction the policy statement required in sub-section (2).
In CNR; FITM & another (Respondent) (Cause E204 of 2021) [2022] KEELRC 82 (KLR)
(26 April 2022) (Judgement) the claimant filed a Statement of Claim alleging that the 1 st
Respondent employed her in 2016 which she accepted. The Claimant averred that the 2 nd
Respondent sent her offensive text messages that had a detrimental sexual connotation effect on
her employment, job performance and job satisfaction. She added that the 2 nd Respondent started
seducing her in a manner that was both offensive and abusive and thus undermined her dignity.
She stated that the 2nd Respondent’s actions amounted to sexual harassment. She particularizes in
her statement that despite reporting the matter to the 1 st Respondent’s Managing Director, no
action was taken and she was pushed to resign. The court relied on section 6 of the Act and
entered judgement for the Claimant against the 1 st and 2nd Respondent and awarded her with the
reliefs she was seeking from court.
In C A S v C S 2016 KEELRC 977 ( KLR) Ltd the employee disclosed that she was constantly
sexually harassed by various staff members, including some who were in management. The
employee further explained that the lack of a sexual harassment policy by the employer added to
her frustration and harassment. The court found the employer guilty of failing to have a sexual
harassment policy in violation of section 6 of the Employment Act. Another issue that featured in
the CAS case was the employee’s unfair termination stemming from the lodging of the sexual
harassment complaint. After making her complaint, the employee was issued with a show-cause
letter and later dismissed. The judge held that the reasons given for dismissing the employee
were not valid given that she was dismissed for seeking help at the employer’s head office. In
this case, the court found that the employee had been summarily dismissed and awarded her a
compensation
In SRM vs GSS(K) Limited & another (2017) eKLR, the employee disclosed that she was
being sexually harassed by an employee in top management and was dismissed after making her
complaint. The court found the employer guilty of failing or ignoring to investigate the claim
expeditiously and impartially as required by the company’s internal procedures. It was outlined
in the business ethics policy, that when an allegation of sexual harassment is made, the same was
to be raised with the employer’s Human Resource Manager to arrange for the claim to be
investigated impartially, confidentially and without delay. The court held that the process
outlined within the business ethics policy was not followed by the employer. In this matter, the
court found that the employee had been unfairly dismissed and awarded her compensation of
D) PENAL CODE Cap 63
Section 202 on manslaughter provides that a person shall be guilty of the felony termed
manslaughter if the person causes death of another person by an unlawful act or omission. One
of the effects of sexual harassment is emotional issues which could lead to another person’s
death.
Section 203 on murder provides that any person who of malice aforethought causes death of
another person by unlawful act or omission is guilty of murder. Some employers or their
representatives may issue and eventually cause death of an employee who has refused their
sexual advances.
Section 250 on common assault states that a person who unlawfully assaults another as far as it
is not committed in circumstances for which a greater punishment is provided in the Code, is
guilty of a misdemeanor and is liable to imprisonment for one year.
Section 251 on assault causing bodily harm attracts a penalty of at least five years for the person
who commits this misdemeanor.
Section 251A on insulting modesty by forcible stripping provides that a person who intentionally
does this act commits an offence and is liable to imprisonment for a term not less than ten years.
Section 252 on assault on persons protecting wreck caters to magistrates, officers or any person
lawfully authorized, harmed in or on account of the execution of his duty in or concerning the
preservation of any vessel in distress and it attracts an imprisonment for seven years.
Section 253 highlights other assaults. Sub-sections (b), (d) and (e) protect people who have been
assaulted during performance of their work obligations.
E) NATIONAL COHESION AND INTEGRATION ACT OF 2008
The National Cohesion and Integration Act of 2008 (NCIA) is primarily aimed at promoting
national unity, preventing discrimination, and ensuring equal opportunities in Kenya. While the
Act does not explicitly focus on sexual harassment, it does contain provisions that can be used to
address certain aspects of workplace discrimination, including harassment.
The Key Provisions Relevant to Sexual Harassment are;
Section 3 and 4 Prohibition of Discrimination
The NCIA prohibits discrimination based on ethnic, racial, and other factors. While it does not
explicitly mention sexual harassment, discriminatory workplace practices that contribute to a
hostile work environment could be addressed under these provisions.
Section 13 Hate Speech and Harassment
This section criminalizes hate speech and any language that promotes hatred or discrimination. If
sexual harassment includes offensive, degrading, or threatening language, it could be interpreted
as a form of hate speech, especially if it targets individuals based on their gender, ethnicity, or
other protected characteristics.
Section 25 Equal Opportunity in Employment
This section promotes workplace diversity and prohibits discriminatory employment practices.
While it mainly addresses ethnic and racial diversity, it reinforces the broader constitutional right
to equal treatment at work, which indirectly supports protections against gender-based
harassment.
F) VICTIM PROTECTION ACT,2014
The VPA recognizes victims of sexual harassment as individuals who have suffered harm,
including emotional and psychological distress, as a result of criminal acts.
Section 8 Right to privacy and confidentiality
The Act mandates that victims identities and personal details be protected to prevent further
victimization. Employers and authorities must ensure confidentiality when handling complaints.
Section 19 Right to Information and Legal Assistance
Victims must be informed of their rights and available legal remedies. The Act allows victims to
access legal aid services, ensuring they can seek justice without financial constraints.
Section 13 Right to Compensation
The Act provides for financial and psychological support for victims of workplace harassment.
Courts may award compensation to victims for the harm suffered due to workplace harassment.
Section 10 Right to Protection
Employers or perpetrators are prohibited from victimizing or intimidating employees who report
sexual harassment. The law mandates that complaints be handled impartially, without bias or
undue influence.
Section 22 Right to victims to access services
This is crucial for workplace sexual harassment victims who may need counseling or legal aid.
G) THE SEXUAL OFFENCES RULES OF COURT, 2014
Rule 2 recognizes vulnerable witnesses such as children, the elderly and people with disabilities.
The court ensures victims and vulnerable witness are treated in a manner that recognizes their
disability.
The Court protects their privacy by limiting the press or media or any other person in the court
room or the court proceedings during the trial or any part of the trial.
The court may also permit the expedited testimony of a witness where necessary in
circumstances so as to meet the ends of justice.
Rule 6 provides for special arrangements for vulnerable witnesses that the court may permit
vulnerable witnesses to testify using special arrangements. The court therefore seeks opinion of a
vulnerable witness regarding the special arrangements, putting into consideration the age and
maturity of the witness.
Rule 7 provides for the appointment of an intermediary. The court may on the request of the
prosecutor or where it deems fit, direct that a vulnerable witness be accompanied by an
intermediary when testifying in court.
The circumstances when an intermediary may accompany a vulnerable witness are; when
making a statement, when being interviewed and when testifying in court in relation to a case.
H) COMPUTER MISUSE AND CYBERCRIMES ACT CAP 79C
Section 27 criminalizes cyber harassment which is where one willing fully communicates to
another such information that is likely to cause them apprehension, fear of violence to them or
damage of their property, is indecent or grossly offensive, or detrimentally affects the recipient.
Section 37 wrongful distribution of obscene or intimate images of another includes making
obscene images available for distribution or download.
