INTRODUCTION
Many definitions of sexual harassment abound worldwide. For the purposes of this paper, it is suggested that one useful definition is the one given by K.T. Schneider, J. B. Pryor and L. F. Fitzgerald in the book Bullying and Harassment at the workplace (Taylor and Francis Group, LLC, 2011) at page 262. The authours therein delineate
sexual harassment into two broad categories. First, they submit that it is unwanted sex or gender-related behaviour that creates a hostile environment. Secondly, they submit that it is unwanted quid pro quo behaviours, where the unwanted behaviour becomes a term or condition of employment and advancement. This classification
has been recognized with approval by local experts (Mogapaesi, 2018) , and regional law experts (Basson, 2004) who recognize hostile work environment harassment and quid pro quo sexual harassment as two distinct categories. This is the definition that is submitted should be applied to test the efficacy or otherwise of the law in
Botswana regarding Sexual Harassment.
Labour Law in Botswana is rather unique, in that there is separate legislation for workers in the Public Sector and those in the Private Sector. The Public Service Act 1 (hereinafter โPSAโ) was promulgated in 1998, and was the first piece of legislation that provided some protection, in clear terms, regarding sexual harassment. Unfortunately, the PSA applies only to public servants 2 excluding members of the Botswana Defence, Police and Prison services. The Employment Act 3 , (herein after, โEAโ) which was first promulgated in 1982, is the Act that covers all employees in the private sector. Section 38 of the PSA gives a clear and working definition of Sexual Harassment, although this paper will argue for the need of some amendment to it. Employees in the private sector are not completely without some protection, as there are Constitutional provisions that can be relied on, in addition to some limited remedies in the EA against discrimination (Section 23) and against โbad treatment by the employer or the employerโs representativeโ (Section 26).
This paper shall deliberately exclude any discussion on the Code of Good Practice:
Sexual Harassment at the Workplace. While it was promulgated under Section 51 (1) of the Trade Disputes Act, it does not form part of the Act. It is merely a separate document that resides at the offices of the Commissioner of Labour. The Commissioner uses the document to encourage Employers to formulate or devise policies that give credence to the code. It does not have any mechanisms to ensure that Employers do indeed devise these policies. The code cannot be enforced to give rise to legal obligations.This paper shall first briefly review the existing law that relates to sexual harassment in Botswana(including the proposed bill), and then a brief review of the law in South Africa, Zambia, Kenya and the United Kingdom, before suggesting how the law can be enhanced to reflect regional and global trends.
