By Adetutu Deborah Aina-Pelemo
The Policy document containing 17 articles was championed and launched by the Nigerian Bar Association Women Forum in support of the Nigerian Bar Association, at the recently completed 61st Nigerian Bar Association Annual General Conference, held on October 27, 2021, at Elekahia, Port-Harcourt, Rivers State. It commenced with a preamble written by the NBA President, Mr. Olumide Akpata affirming the NBA’s commitment to ensuring a safe workplace for all.
Gaps and events warranting this policy: Sexual harassment has been reported as a major problem faced by many legal professionals, especially those practising in private law firms in numerous states, such as Nigeria, India, the United States of America, Australia, Canada, New Zealand, Scotland, United Kingdom, etc.
Observably, most of the countries mentioned have policies regulating issues of harassment, especially sexual harassment in their legal profession while those without a specific policy have a national law on sexual harassment.
However, Nigeria does not have a precise national law but fragmented legal provisions on sexual harassment, which is enforced across the six geopolitical zones. Since the inception of the Nigerian legal profession and the Nigerian Bar Association, there had never been a policy preventing, prohibiting, and redressing issues of sexual harassment in the profession despite the culture of sexual harassment in the profession.
Although very few empirical studies have been conducted on sexual harassment in the Nigerian legal sector, nevertheless, a 2019 study conducted by Aina-Pelemo, et al, found that among 561 Nigerian Lawyers (68 per cent female and 32 per cent male) residing in Abuja had experienced sexual harassment either as a lawyer or legally attached trainees, 63.5 per cent were aware of a colleague (female or male lawyer/legal trainee) who had experienced sexual harassment in their workplace and 83.6 per cent admitted that sexual harassment hinders the growth of the Nigerian legal profession. A research scholar reported that his personal communication with a judge revealed that harassment is also at the bench.
The alarming rates of sexual harassment occurrences within the Nigerian legal profession, though underreported, have also been reiterated in Nigerian news reports: A Journalist reported that 2019, Nigerian Bar Association Annual General Conference, extensively analysed the widespread bullying and sexual harassment in the legal/justice community. Two national dailies reported the need for sexual harassment policy in the Nigerian legal profession so as to set a good example to other professions and the country. Hence, the need for the NBASHP to regulate, penalise, educate and curb all manners of sexual behaviors that are unbecoming of legal professionals in the workplace.
Substantive provisions of the NBA sexual harassment policy: Article 2 of the policy document presents the purpose of the policy which is to prevent and address the corporate issues of sexual harassment, to promote healthy, safe, productive and conducive workplaces for Nigerian legal practitioners as well as serve as a guide for employers to adopt an official policy and regulation on the subject matter. The legal framework of sexual harassment was briefly analysed in Article 3 of the NBASHP to include the following instruments: Nigerian Labour Law, 2004, National Industrial Court, Civil Procedure Rules, 2017, Order 14 Rules 1(a) (b) (c) & (d), Violence Against Persons’ (Prohibition) Act, 2015, Employees Compensation Act, 2010.
The Criminal Law of Lagos State, 2011, Article 4, inter-alia, extensively addressed the scope of the policy. It applies to both private and public sector irrespective of size, whether companies, enterprises and/or businesses. Furthermore, aside from the office environment, the article defines workplace to include places other than the registered office so far, work-related events or activities transpire there. Places such as, conferences, workshops, official business trips, work related communications, business meals etc Article 5 of the NBASHP defines sexual harassment as any sexual behavior that affects the dignity of women and men which is considered unwanted, unacceptable, inappropriate and offensive to the recipient and creates a hostile, intimidating, unstable, unconducive or offensive work environment. It classifies sexual harassment in the workplace into four types – physical conduct of a sexual nature, a verbal form of sexual harassment, a non-verbal form of sexual harassment and quid pro quo harassment. Notably, this definition is in line with the definition provided by the International Labour Organisation, ILO, on sexual harassment. Although, the NBA’s definition is a good starting point, it cannot be the final word on sexual harassment in the profession, given its varied forms and manifestations..
Article 5 further defines a behaviour that is not sexual harassment in the workplace; such behaviour should be occasional or one that is socially and culturally acceptable. Also, consensual sexual interaction may not constitute sexual harassment, except such act is with an underaged, then the matter of consent will be irrelevant. However, the article further provides for the defence of social and cultural acceptability. This defence is, in many ways, problematic. The indicators of social and cultural acceptability are unknown and could be a convenient shield for perpetrators. For instance, since cultures are not necessarily homogeneous in a plural society such as Nigeria, one may ask whose culture is referenced in article 5? Is it the victim’s culture or the perpetrator’s culture? To put it more clearly, perpetrators may easily justify their conducts based on their own cultures which may differ from the victim’s culture. As a minimum, the policy document could have provided further guidance on the scope and/or limits of these exceptions.
More generally, one may argue that the policy document is a reactive and proactive one which is structured to address the ongoing problem of sexual harassment and to prevent the sexual menace from further occurring in the legal profession. This is a regulatory policy to checkmate any sexual behaviour that is unbecoming of a lawyer, especially when it has to do with power differences. Article 6 of the policy spells out the roles and responsibilities of workers/employers which include creating a work environment free from all forms of harassment, adopting a sexual harassment policy or incorporating sexual harassment as part of the work code of conduct, including sexual harassment in the staff orientation, education and training programmes, responding quickly to any complaints of sexual harassment and monitoring the smooth implementation of the policy.
Employees or workers’ responsibilities are classified into a six-point agenda under article 6 which is as follows: to understand the organisational policy on sexual harassment, observe behaviours or engaging conduct in potential sexual harasser and be sensitive to colleagues or friends who may be offended with the verbal or non-verbal behaviour, examine one’s behaviour and not trivialise sexual harassment, confront the harasser and let them know that their conduct or act is inappropriate, employ a strategy to address the issue formally or informally by building the evidence base and supporting victims or complainants of sexual harassment in every way possible. This indicates that a zero-tolerance approach to sexual harassment is not only the duty of the employer but the duty of everyone in the workplace.
Article 6, inter-alia, apportion duty to the trade union as follows: to ensure that issues related to sexual harassment in the workplace are negotiated in a just and transparent manner as well as ensure that victims are properly guided, equipped with information and represented.
Likewise, human resource of the organisation is to imbibe the culture of respect and trust among workers to prevent sexual harassment, and issues of such are to be treated promptly when it is brought to their knowledge.
However, Article 7 ought to be added to the list of responsibilities of the employer provided under Article 6 which is to provide necessary support for the complainant or victim of sexual harassment in the form of work leave and consulting a psychologist or counsellor if needed. Article 8 of the NBASHP provides for formal or informal complaints mechanism for victims of sexual harassment, peradventure the alleged harasser is found guilty of the allegation. Article 9 subjects such person to sanction and disciplinary measures including the report of the person to the Legal Practitioner Disciplinary Committee, LPDC, and immediate dismissal of the harasser. It is pertinent to note that the policy also covers third-party harassment, that is, non-staff, clients, contractors, and friends of the organisation.
Ordinarily, the implementation of this policy ought to be included as a part of the responsibilities provided for employers and employees under Article 6 but, it is stated distinctively under Article 10 by the drafter as follows – employers or companies are to include sexual harassment in the staff handbook as well as train employees annually on the content of the policy as part of the induction/on-boarding into the company and ensure that all employees are informed of organisation’s zero-tolerance to sexual harassment.
The evaluation of the policy is contained in Article 11. It states that supervisors, managers, and those dealing with sexual harassment cases in an organization are to report yearly on compliance with this Policy.
The format and procedure for this report is, however, unclear. Meanwhile, on the basis of this report, the company will evaluate the effectiveness of the policy and make necessary changes.
However, the prospect of implementing this article without any penalty for failure to do so, is highly doubted. The advantage of this policy is that it protects all lawyers and those dealing with lawyers in Nigeria, including those practicing in firms or organizations that are not dealing with law-related businesses. So far the complaint is to prevent, prohibit and redress issues of sexual harassment of a qualified lawyer who has been called to the Nigerian Bar as an advocate and solicitor of the Supreme Court of Nigeria, the Policy would apply.
Another notable advantage is that law students and Para-legals coming to law organizations for internship or legal traineeship or legal attachment could rely on Article 9 of the Policy when faced with the issue of sexual harassment during their internship or traineeship, as the Policy deals with third party harassment.
However, the disadvantage is that the formal method of seeking redress provided above seems vague and impracticable specifically within the private law firms based on its structure. Most private firms in Nigeria do not have Human Resource Departments as they are usually owned by the Principal partner and managed by the Head of Chambers that have been employed by the Principal partner. Hence, the Principal partner or Head of Chambers in most cases occupies the role of Human Resources and could also be the harasser. Thus, it is apt to ask, Quis custodiet ipsos custodes? Can the victim formally report the issue to the harasser having observed the duty of confronting the harasser without any retaliation? This is highly doubted. The constitution of a neutral NBA body with high confidentiality to entertain complaints of sexual harassment against Principal partners/Managing directors of any law firms or organizations, maybe a more effective strategy.
The Policy did not specify its scope and boundaries when it has to do with entertaining complaints of sexual harassment against any members of the committee constituting the LPDC and the categories of sexual harassment that will be referred to LPDC. If this is not explicitly stated it could be misconstrued by the interpreters or users. Also, the inclusion of the drafters’ names as a substantive article (Article 17) in the Policy seems abnormal. Those names could be included in a separate category not as an Article because it has nothing to do with sexual harassment.
In conclusion, addressing sexual harassment through a ‘Self-regulatory Approach’ of this nature under the Professional Code of Conduct might likely create fear of being ostracised or debarred on the part of Lawyers who display such misconduct within the profession, as well as create an organisational culture that has zero-tolerance to sexual harassment and informal platforms for laying complaints of sexual harassment in the profession. Hence, it is a calling for employers, especially law firm owners to ensure that every member of the profession working in their organisation is provided with decent working conditions and environment in order to aid the development of the profession.
NBA needs to put practicable steps to ensure that this Policy is properly and effectively implemented.
Dr. Aina-Pelemo is of the Dept. of Jurisprudence and International Law, Redeemer’s University, Ede, Osun-State.