Labour Relations Tribunal, Frederick Mwenye v. Textile Investment Company, 8 May 2001, No. LRT/MT/11/01
Constitution of Zimbabwe
Article 111(b): Effects of International Conventions
Except as otherwise provided by this Constitution or by or under an Act of Parliament, any convention, treaty or agreement acceded to, concluded or executed by or under the authority of the President with one or more foreign states or governments or international organizations: (…) (b) shall not form part of the law of Zimbabwe unless it has been incorporated into the law by or under an Act of Parliament.
Direct resolution of a dispute on the basis of international law
Sexual harassment/ Gap in national legislation/ Direct resolution of a dispute on the basis of international law
A secretary complained to the General Manager of the company she worked for that one of the Senior Managers had submitted her to constant and persistent sexual harassment. The Senior Manager was dismissed. Challenging the decision, he brought the case before the tribunal.
The Court had to assess if the appellant conduct could be qualified as sexual harassment. Since no national provision addressed the issue, the Court relied on international law.
The Court thus ruled as follows:
“I am not aware of any local cases that have given a judicial definition of the term sexual harassment. In its ordinary grammatical meaning the term connotes subjecting a person to unpleasant, objectionable treatment of a sexual nature.
The UN Convention on The Elimination of All Forms of Discrimination against Women (CEDAW) General Recommendation Number 19 of 1992 however defines sexual harassment as including “unwelcome sexually determined behavior (such) as physical contact and advances, sexually colored remarks, showing pornography and demands, whether by words or actions.” In this case the evidence clearly establishes that the appellant made repeated unwanted sexual advances to Miss Gwelo to her annoyance and discomfort. Despite her clear objections the appellant persisted with his objectionable behavior. (…)
Sexual harassment is a form of abusive immoral behavior which strikes at the very core of human dignity and integrity. It undermines the fundamental freedom of association. (…). CEDAW General Recommendation Number 12 of 1989 recognized sexual harassment as violence against women.”
Having established the deficiency in national legislation, the judge applied the provisions of the UN Convention on the Elimination of All Forms of Discrimination against Women directly, ruling that the conduct of the complainant constituted sexual harassment and thus dismissing his appeal.