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The recent Judicial Tribunal report in South Africa concerning Judge President Mbenenge offers Kenya an opportunity to reflect carefully on how sexual harassment complaints are handled within the legal profession. The Tribunal found that the Judge President engaged in misconduct by participating in flirtatious conversations during working hours.
However, it declined to classify the conduct as sexual harassment that amounts to misconduct warranting removal under Section 177 of the South African Constitution because the evidence showed that the exchanges were welcomed and consensual.
That distinction is central to sexual harassment law across many jurisdictions and should guide Kenyan institutions as well. Kenya has recently seen several complaints of sexual misconduct raised against advocates. At the same time, there have been suggestions in the past by the Advocates Disciplinary Tribunal, through its decisions, that it lacks jurisdiction over sexual harassment claims.
That position is unsustainable. Sexual harassment, when proven, is a form of professional misconduct. It occurs within the professional environment, often between colleagues, seniors and juniors, or advocates and clients. It directly implicates the dignity, integrity, and ethical standards required of court officers.
Scholars who have examined misconduct within the legal profession, including writers such as Slocum and Schulz, have demonstrated that regulatory bodies across common law jurisdictions treat sexual harassment as falling squarely within professional discipline.
It is not a separate moral issue detached from practice; it is conduct that affects public confidence in the profession. If an advocate uses their office, status, or professional platform to pursue unwelcome sexual advances, that is a breach of professional duty. The Advocates Disciplinary Tribunal, therefore, has both the authority and the obligation to entertain such complaints.
The South African tribunal also clarified something that is frequently misunderstood in public debate. The most critical component of sexual harassment is that the conduct must be unwelcome.
This principle has long been emphasised by experts in this area as Vicki Schultz, who explains that harassment law turns on proof that the complainant did not welcome the sexual conduct in question. It is not enough that conversations were sexual. It is not enough that messages were exchanged. The decisive question is whether the conduct was unwanted.
In the Mbenenge matter, the Tribunal scrutinised the full record of communication. It found that Ms. Mengo participated in and entertained the exchanges. Evidence showed that certain messages in which she appeared to initiate or reciprocate flirtation had been omitted.
On the totality of the evidence, the tribunal concluded that the interaction was consensual. It nevertheless found misconduct because engaging in flirtatious conversations during work hours and within a professional setting fell below the standard expected of a senior judicial officer.
That careful distinction was important. Kenyan institutions must draw that line with clarity. Sexual harassment requires proof of two key elements. First, the conduct must be sexual in nature and sufficiently serious or persistent. Second, and most importantly, it must be unwelcome.
Unwelcome conduct is the anchor of harassment law in democracies that value both equality and fairness. If the conduct is welcomed, either expressly or by consistent and voluntary participation, it does not meet the legal threshold of harassment.
The law does not criminalise consensual adult interaction, even where that interaction may be ill-advised or violate some morality. This brings us to another hard but necessary point. Claims that are based on distortion, concealment of material facts, or outright falsehood are deeply damaging.
They are counterproductive to the struggle against genuine sexual harassment. When complaints are later shown to be exaggerated or misleading, the credibility of real victims suffers. Institutions may become overly cautious.
The seriousness of the offence risks being diluted. Gender advocacy, which has fought long and hard for recognition of workplace abuse, is undermined when the legal process is misused. Every complaint must still be tested on evidence. Fairness to complainants and fairness to the accused are not opposing values in this discourse. When tribunals apply the law carefully, as the South African Tribunal did, they strengthen the fight against harassment.
The question of power imbalance also deserves careful attention. Many harassment cases indeed arise in contexts where one party holds authority over another. Senior advocates influence the careers of juniors. Judges command respect and institutional power.
In such environments, silence or compliance may sometimes be driven by fear. Lundgren and Wieslander have extensively written about how abuse of power can transform sexual conduct into coercion. But the existence of hierarchy does not automatically prove that power was exercised improperly in every case.
The tribunal in South Africa emphasised that power must be shown to have been real and operative in shaping the complainant’s response. Rank alone is not evidence of coercion. In the Mbenenge matter, the tribunal concluded that the interaction displayed mutuality and autonomy rather than compulsion itself.
Kenya must adopt a similarly disciplined approach. Power imbalance should be examined, not presumed. The evidence must demonstrate that the alleged victim’s ability to refuse was genuinely constrained.
Our legal profession stands at a defining moment. Kenya has strong constitutional commitments to dignity, equality, and integrity in public life. The Advocates Disciplinary Tribunal should affirm clearly that sexual harassment, where proved, is professional misconduct within its jurisdiction. At the same time, it must insist on clear proof that the conduct was sexual, persistent, or serious, and above all, unwelcome.
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By Ndong Evance