What Constitutes Sexual Harassment in Nigeria?
Sexual harassment, broadly understood, involves unwelcome conduct of a sexual nature that violates an individual’s dignity, creates a hostile environment, or exerts undue pressure on a person in personal, professional, or public settings. In Nigeria, the legal definition and elements of sexual harassment vary slightly depending on the applicable statute and jurisdiction (southern states governed by the Criminal Code, northern states by the Penal Code, or specific state laws). However, certain core elements consistently emerge across these frameworks.
Key Elements of Sexual Harassment Under Nigerian Law
1. Unwelcome Conduct
A fundamental element of sexual harassment is that the conduct must be unwelcome. This means the behavior—whether verbal, physical, or non-verbal—is unwanted by the recipient. The Violence Against Persons (Prohibition) Act 2015 (VAPP Act), operational in the Federal Capital Territory and adopted by several states, explicitly defines sexual harassment in Section 46 as “unwanted conduct of a sexual nature or other conduct based on sex or gender which is persistent, serious and demeans, humiliates or creates a hostile or intimidating environment.” The emphasis on “unwanted” underscores that mutual, consensual interactions do not constitute harassment.
For example, the Criminal Law of Lagos State (2011), under Section 262, describes sexual harassment as including “unwelcome sexual advances, requests for sexual favors, and other visual, verbal or physical conduct of a sexual nature” that the victim rejects or submits to unwillingly. The recipient’s perception of the conduct as offensive or distressing is central to establishing this element.
2. Sexual Nature of the Conduct
The conduct must have a sexual undertone or be related to the victim’s sex or gender. This can include physical acts (e.g., touching, fondling, or assault), verbal remarks (e.g., sexual comments, propositions, or jokes), or non-verbal actions (e.g., displaying explicit materials or suggestive gestures). Under the Criminal Code (applicable in southern Nigeria), Sections 351 to 361 cover offenses like indecent assault and acts intended to outrage modesty, which can encompass sexual harassment behaviors. Similarly, the Penal Code (applicable in northern Nigeria) addresses “indecent assault” in Sections 281, 282, and 285, capturing acts of a sexual nature performed without consent.
The National Industrial Court of Nigeria (NICN) further clarifies this in its Civil Procedure Rules (2017), where Order 1, Rule 10 defines sexual harassment as “unwanted, unpleasant, offensive or threatening conduct of a sexual nature distinguished from sexual attention that is welcome and mutual.” This judicial interpretation reinforces that the sexual element is critical.
3. Impact on the Victim
The conduct must have a tangible negative effect on the victim, such as creating a hostile, intimidating, or offensive environment, or interfering with their work, education, or personal life. Under the VAPP Act, the behavior must be “persistent, serious” and result in demeaning or humiliating conditions. The Criminal Law of Lagos State adds that the conduct may “implicitly or explicitly affect a person’s employment or educational opportunity,” “unreasonably interfere with performance,” or “create an intimidating, hostile or offensive environment.”
This element does not necessarily require physical harm; emotional or psychological distress suffices. For instance, in the landmark case *Ejike Maduka v. Microsoft* decided by the National Industrial Court, the court recognized workplace sexual harassment as a form of gender-based discrimination and a violation of the right to dignity under Section 34 of the Nigerian Constitution, emphasizing its detrimental impact.
4. Lack of Consent
Consent—or the absence thereof—is a pivotal element. Nigerian law distinguishes consensual acts from harassment by focusing on whether the victim willingly participated. The Penal Code, in Section 285, punishes acts of gross indecency performed “without consent or by the use of force or threats,” while the Criminal Code’s provisions on assault (e.g., Section 352) imply that lack of consent elevates the offense. Courts have consistently held that consent must be freely given, not coerced through power imbalances, intimidation, or manipulation—common dynamics in workplace or educational settings.
5. Context and Power Dynamics
The context in which the conduct occurs often shapes its classification as harassment, particularly when there is an imbalance of power (e.g., employer-employee, teacher-student). While not always explicitly stated in statutes, judicial rulings and specific laws like the *Prevention, Prohibition and Redressal of Sexual Harassment in Tertiary Educational Institutions Bill* (passed in 2020 but not yet universally enforced) hig’hlight this element. The VAPP Act and Lagos State law also recognize that submission to or rejection of the conduct might influence employment or academic decisions, reflecting how authority can exacerbate harassment.
Legal Framework Supporting These Elements
Constitutional Basis: Section 34 of the 1999 Constitution guarantees the right to dignity, indirectly condemning sexual harassment as a violation of personal integrity.
Criminal Code (Southern Nigeria): Sections 351-361 criminalize assaults and indecent acts, with penalties ranging from one to fourteen years’ imprisonment.
Penal Code (Northern Nigeria): Sections 281-285 address indecent assault and immoral procurement, with punishments up to seven years.
VAPP Act (2015): Section 46 provides a modern definition of sexual harassment, with penalties including imprisonment for up to three years or fines.
State Laws: The Criminal Law of Lagos State (Section 262) imposes a three-year imprisonment term for sexual harassment, offering a robust state-level model.
Challenges in Application
Despite these legal provisions, challenges persist. Nigeria lacks a unified national law explicitly addressing sexual harassment across all sectors, leaving gaps in enforcement. Cultural attitudes often discourage reporting, and the absence of explicit provisions in the Labour Act (which governs employment) limits workplace-specific remedies. Additionally, proving intent or the subjective impact on victims can be difficult in court, particularly in less-documented cases.
Conclusion
Under Nigerian law, sexual harassment hinges on unwelcome conduct of a sexual nature that lacks consent, negatively impacts the victim, and often exploits power dynamics. While the legal framework—spanning constitutional rights, criminal codes, the VAPP Act, and state laws—provides a foundation to address this issue, its effectiveness depends on consistent enforcement, public awareness, and legislative reform. As Nigeria continues to evolve its legal protections, understanding these elements is crucial for victims seeking justice and for society aiming to eradicate this pervasive violation of dignity.