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Labour Act should be reviewed to accommodate sexual harassment in workplace, says Ajulo

Ayoyinka Jegede

Aug. 11, 2020

Dr. Kayode Ajulo
Dr. Kayode Ajulo is a lawyer with special interest and extensive experience in good governance, civil rights, and conflict management. He spoke with AYOYINKA JEGEDE on corruption in the judiciary, judicial independence and sexual harassment bill as well as the court annual vacation debate.
What is your view on the alleged corruption in the judiciary? Corruption in the judiciary is politicalised and exaggerated. To say that our judges are corrupt, using my experience as a lawyer and as a litigator that goes to court everyday, is false. Why I said it is politicalised is that everyday in each court, I see more than 20 to 30 cases being dispensed and there will be no complain. But because of a single political case politicians will complain. No matter what the decision of the court is, politicians would either say it is against them or they will say democracy is in danger. They accuse the judges of taking bribe but it is not always like that. When it comes to politics, any loosing party will come up with a brush to paint the judiciary as bad.
Although, I am not saying there are no corrupt judges as we have corrupt lawyers and corrupt litigants, after all we are all members of this corrupt society. But the way the judiciary is always being portrayed as a corrupt entity. It is not so. Among the three arms of government in Nigeria, the judiciary is the best. In terms of recruitment, can you compare the way our executives and legislators are being elected to office with that of judges? First and foremost, any judge in this country must first be a lawyer. Beyond your intelligence or how good you are in the class, you must be fit and proper. To be fit and proper to be called into the bar connotes a lot. After your call to bar, you will use minimum of at least 10 years in practice as a lawyer before you can even be considered to be a judge and these things require so many things. I believe Nigeria needs to apologise to some of our judges for labeling them as corrupt.
Finally, I am yet to see any institution in Nigeria that is self-redeemed like the judiciary. You know what the National Judicial Council (NJC) do. Even as a lawyer, you have disciplinary committees to contend with. It is not the same in the other arms of government. For instance, if an issue involves a minister of the executive, you don’t even have a body that can receive a petition against the fellow. If a judge is found wanting, the judiciary disciplines him because the body will not allow any case of corruption to go unchecked.
If we agree that they are not corrupt, what do you then say about judicial independence? Whatever you say of President Muhammadu Buhari’s government, we need to commend him for that executive order he signed in respect of judicial independence and even the parliament. The biggest injustice to justice and democracy in Nigeria is where the judiciary is not independent. Independence of the judiciary means so much to our democracy. This is what made the Chief Justice of Nigeria to complain last year about judges kneeling down and begging for funds to dispense justice. Everybody needs to come together and join hands with the present government to ensure that independence of the judiciary, which we have been agitating for over the years come to limelight.
This bill is significant in a number of ways, chief among which is that, at no time in the history of this country have we had a sub-sector specific bill to address the menace of sexual harassment in our ivory towers. Any right thinking individual should not tolerate this endemic culture of violation of the rights of students to a peaceful enjoyment of learning. It is therefore commendable that the Nigerian senate has decided to take the bull by the horn by coming up with this beautiful piece of legislation. That the bill even removed mutual consent, as a defence in prosecution of sexual harassment cases is evidence that a lot of intelligent work was put into it. For the purpose of clarity, sexual harassment is any unwanted act of a sexual nature, which puts the victim in a place of discomfort, humiliation or intimidation. It is therefore in my considered opinion an aberration that should find no place in our societies, let alone our citadels of learning.
The age-long principle embedded in the term ‘in-loco parentis’ which is Latin for in the place of a parent’ is non-negotiable in the dealings of a lecturer with a student, even though some may argue that this principle is now being eroded because of the numerous cases of sexual violation of children by their own biological parents. As arguable as that may be, we cannot afford to act in despair by doing nothing to address this menace. Already these have been taken care of by Sections 31 and 32 of the Child’s Rights Act, 2003 and relevant sections of the Criminal Code and the Penal Code respectively in case of a sexual harassment of an adult.
It will be recalled that late last year, a randy University of Lagos lecturer was exposed in a well-documented video by an undercover journalist and two days after this sad revelation, this once rejected sexual harassment bill was reintroduced by the Nigerian senate to the excitement of Nigerians. Laws as instruments of social engineering and re-engineering must be constantly enacted and applied to check morally obtuse tendencies such as sexual harassments. The goal is that our tertiary institutions have to be rid of distractions such as this unacceptable one.
To the legally opinionated, a legitimate question may be asked as to why do we need this educational sub-sector specific bill?  Why not an encompassing bill that takes into consideration issues revolving around sexual harassment generally? These questions are but a shadow of insignificance when placed side by side with the solutions already proffered in this instant legislation as far as the future of our youths is concerned. Undoubtedly, we may need to strengthen our legislations in order to check sexual harassment in the workplace, religious houses, clubs and so on. This presents a case for the review of the Labour Act with respect to the issue of sexual harassment in the workplace.
I want to strongly counsel lecturers to ensure an optimum level of civilized behaviour when dealing with their students. I strongly disbelieve that this piece of legislation is not biased against lecturers. In fact, the potentials for academic excellence that this bill possesses should be effectively harnessed. There is also the prospect of an atmosphere of mutual respect between students and lecturers. I understand that ASUU during public hearings on the bill expressed dissatisfaction with the manner the bill profiles its members as chief culprits with regards to sexual harassment, which according to it is pervasive in the larger society. Well, with the bill, we can start from somewhere, which is better than standing aloof and watching the academic pursuits of our young ones being impeded by the sexual demands of some lecturers.
In assuaging any legitimate fear, it must be stated here that the bill should provide for strict punishment of false allegations made against a lecturer by a student, also the facts of each case should be first investigated by the authorities of the affected tertiary institution in order to provide a preliminary basis for charging an offender under the new law.
Recall also the case of Prof. Richard Akinola, the OAU ‘sex for marks’ lecturer who asked his student for a sexual benefit, thankfully enough he is presently cooling his heels behind bars. It is important to note the accused was sentenced on a charge of sexual harassment preferred against him by the Independent Corrupt Practices and other related offences Commission (ICPC). It is expected that with the eventual passage of this bill into law, the menace of sexual harassment in our ivory towers will be reduced to a barest minimum and the nation’s tertiary institutions can indeed become citadels of learning and character.
After four months of staying at home as a result of the Covid-19 lockdown, the judiciary has just announced another two months holiday from July to September. Another December vacation awaits them this year. As it is, our judges will just work for only five months in 12 months. How does this help or hurt the already ailing system and economy?
This is an unusual time and the spread of the coronavirus has affected people all over the world including health and the economies of the world. The various restrictions and lockdown directives have also hampered access to court in the last couple of months by the federal and various state governments. However, the courts in curbing the impact of the pandemic on administration of justice have put in place various mechanisms to avoid a further clog on the already decongested court system. Mechanism such as telephone conference calls, virtual hearing through zoom applications were implemented and the court suspended penalty fee for late filing of court processes and permitted service of court processes vide email. The courts while complying with the social distance directives also ensured continuation of hearing of court cases but making sure the courts were not congested with cases. Be that as it may, speaking from personal experience, it may interest you to know that one of the Justices of the High Court of the Federal Capital Territory; Justice Peter Affen delivered judgment in one of my cases before him during the lock down period. Similarly, at Castle of Law, we obtained over ten appeal judgments at the Court of Appeal in Abuja, Akure and Ekiti during the lockdown period. I am sure that this applies to all other law firms too. I will therefore disagree with the notion that the courts were not working during the lockdown period.
Shouldn’t the judges have put off their annual vacation? It is pertinent to explain the logic on which the provision for annual vacation of courts is anchored. Various rules of court provides for the period within which the courts can proceed on annual/long vacations, therefore court vacation is statutory and mandatory subject to some exceptions. In the FCT High Court, judges go on vacation for a period not more than six weeks. The National industrial Court goes on a vacation period of not more than 42 days. The Federal High Court also goes on vacation for a period not exceeding 6 weeks. See Order 52(4) (e) of the High Court of the Federal Capital Territory Civil procedure Rules 2018; Order 58(4) (2) of the National Industrial Court Civil Procedure Rules 2017; Order 46(4) (d) of the Federal High Court Civil Procedure Rules, 2019.
It is also instructive to note that the Chief Judge of a state has the discretion to reduce the period of vacation, cancel it or allow court sittings during the period of vacation.  It may be recalled that the president of the Court of Appeal cancelled the 2019 annual vacation for justices of the court.  Similarly, the Supreme Court also did it in 2019. The National Industrial Court rules and the Federal High Court rules permit applications by parties to the court to be heard during vacation period. The various rules of court also make provisions for vacation courts. It suffices to add that the vacation period for the judges are meant for retreats and conferences and not just to lazy around as postulated by some persons. Vacations are to be prepared for with its attendant expectations, obligations and allowances. It should not be equated to emergency lockdowns and restrictions.
Chief Judges of Ogun, Jigawa and a few others cancelled their annual vacation this year. This is good, but shouldn’t this have been a general thing, in view of the present socio-economic challenges(s)? As stated above, the powers to declare annual vacation is subject to the discretion of the various heads of court. While acknowledging the positive effect of the decision by the Chief Judge of Ogun and Jigawa States to cancel their annual vacation, one must not lose sight of the fact that the statistics of backlog of cases differs from one court to another. If one head of court has elected not to go on annual vacation, others should not be compelled not to proceed on vacation. For instance, I allow my lawyers to go on annual leave. While some elect to go, others decide to stay back.
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