[kictanet] On homosexuality and Information Controls: Laws and Culture

Wed Feb 24 14:47:32 EAT 2016

Moses, thank you for reminding us of our duty towards a more inclusive
society. KFCB "banned" the song as "homosexuality is illegal". Infact, the
proximate videos on YouTube have (non homosexual) content that many Kenyan
parents would rate "after high school age" but these are not a target of
the ban. The video is opportune as it forces us to start this conversation.

The legality of homosexuality is a question that has already been before
the courts in Petition No 440 of 2012 available here
http://kenyalaw.org/caselaw/cases/view/108412/. In this case, the
government had declined to register an organisation for gay rights and the
organisation went to court seeking to protect their rights.

While interpreting sections 162, 163 and 165 of the Penal Code, the court
held as follows:

“A reading of the above provisions indicates that the Penal Code does not
criminalise homosexuality, or the state of being homosexual, but only
certain sexual acts“against the order of nature.”. That the State does not
set out to prosecute people who confess to be lesbians and homosexuals in
this country is a clear manifestation that such sexual orientation is not
necessarily criminalised. What is deemed to be criminal under the above
provision of the Penal Code is certain sexual conduct “against the order of
nature”, but the provision does not define what the “order of nature” is.”

@Mildred, on your second question, I would hold that if we want to police
content where there is no consensus on the illegality of the content, let
it be through a judicial process. 

Regards,

2016-02-24 14:13 GMT+03:00 Barrack Otieno via kictanet <
kictanet at lists.kictanet.or.ke>:

> Hi Moses,
>
> It goes back to our value systems as a Nation, what is considered
> moral offline should be considered moral online and vice versa. I
> think the mandate of the Kenya Film Classification Board is very clear
> and is based on our constitution and should be debated against that.
>
> The Internet is just a tool even though we try to ascribe a lot of
> fanciness to it, it can be used to build or to destroy communities and
> nations. It is upon us to decide whether we want to hide under
> philosophical arguments or strengthen the value systems in our society
> which will in turn strengthen the very society we live in, we cannot
> hide our heads in the sand and accept everything that comes our way.
>
> Over the weekend my car was hit while stationary in a traffic jam by a
> Matatu being driven by 'cool' young men. They bullied me to make way
> for their vehicle since they were in a hurry, the worst part is they
> never stopped to apologize even after damaging my car, fellow Kenyans
> on the road found this unacceptable and  asked me to pursue the young
> men and have a word with them, i succeed in blocking them and found
> myself in a situation i did not anticipate. The driver was a childhood
> friend totally intoxicated and indulging in the same drug abuse as he
> was driving carrying 33 passengers, i will not even talk about the
> blaring music whose content we are all aware of. To make it worse the
> drove through two police checks with approximately seven policemen.
>
> I suppose that is the Kenya we want, but we need to pose and reflect
> on our Social Fabric.
>
> Regards
>
> On 2/24/16, Mose Karanja via kictanet <kictanet at lists.kictanet.or.ke>
> wrote:
> > Hello listers,
> >
> > The Internet has been a great platform for sexual minorities and those
> who
> > work to defend their rights for organization, support groups and as safe
> > haven from hostile offline environments. The video clip in question was
> > uploaded, not sold on the streets of Nairobi, in part because the
> Internet
> > is a safer platform for the LGBTQ community.
> >
> > My thinking on this is not even a question of legality but rather about
> the
> > cultural expectations we have in our country on this topic. If tomorrow
> the
> > LGBTQ community successfully lodged a constitutional case on the
> illegality
> > of the clauses incriminating their very identity, the people they live
> with
> > in their neighbourhoods, schools, churches and mosques would not accept
> them
> > overnight. It will take time and immense effort to build a critical mass
> who
> > take our brothers and sisters who are sexual minorities as human beings.
> As
> > human rights defenders, out role should then be to keep the Internet as
> that
> > safe haven for the LGBTQ.
> >
> > Moses.
> >
> >> On Feb 24, 2016, at 12:23 PM, kictanet-request at lists.kictanet.or.ke
> >> wrote:
> >>
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> >> than "Re: Contents of kictanet digest..."
> >> Today's Topics:
> >>
> >>   1. Re: Films board gives Google a week to take down gay song
> >>      video - Corporate News (Mildred Achoch)
> >>   2. Re: Films board gives Google a week to take down gay song
> >>      video - Corporate News (simiyu mse)
> >>
> >> From: Mildred Achoch <mildandred at gmail.com>
> >> Subject: Re: [kictanet] Films board gives Google a week to take down gay
> >> song video - Corporate News
> >> Date: February 24, 2016 at 11:59:52 AM EAT
> >> To: simiyu mse <kensimiyu at gmail.com>
> >> Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
> >>
> >>
> >> Hi Ken,
> >>
> >> Let me ask some questions in an attempt to answer your question (and at
> >> the risk of opening a can of worms)
> >>
> >> 1. Note: I don't know the details of the laws regarding homosexuality in
> >> Kenya. My question is: in Kenya, is it illegal to practice homosexuality
> >> or is it illegal to BE a homosexual?
> >>
> >> 2. Related to the above question, as an artist/creative/content producer
> >> whose role in society is to hold up a mirror using my art, is it illegal
> >> to portray what is already happening in society? Crime is illegal yet
> >> Nairobi Halflife was not banned. :-)
> >>
> >> It goes back to the muddy issue of morality. It seems in Kenya, some
> >> crimes are deemed more hazardous than others and these skewed views
> >> trickle down to censorship parameters.
> >>
> >> The issue of obeying the laws of the land is also muddy, especially in
> >> this age of globalization. Is my online TV channel, which is available
> >> only on the Internet, hosted by a foreign country and with majority of
> >> viewers being non-Kenyans, subject to the laws of Kenya (only)?
> >>
> >> Check out the Rock 'n' roll film festival, Kenya TV Channel!
> >> http://kenyarockfilmfestivaljournal.blogspot.com
> >> <http://kenyarockfilmfestivaljournal.blogspot.com/>
> >>
> >>
> >> On Wed, Feb 24, 2016 at 9:31 AM, simiyu mse <kensimiyu at gmail.com
> >> <mailto:kensimiyu at gmail.com>> wrote:
> >> Hello Mildred.
> >>
> >> Excellent points and just as you said, if you support the infringement
> of
> >> one's right then its only a matter of time before the axe is trained on
> >> yours.
> >>
> >> However, there is the element of promoting something that is illegal.
> >> Homosexuality is currently illegal in the country. The morality angle
> may
> >> be abit vague based on it's subjective nature but in terms of legality
> it
> >> is as clear as night and day.
> >>
> >> Whats your take on the matter being an online media stakeholder?
> >>
> >> Kind regards.
> >>
> >> ./ken
> >>
> >> The major problem is that there is no clear line as to what "morality"
> is.
> >> Each individual, each government has their take on what is moral. So
> who's
> >> right is it to say what is right and what is wrong? I do my best to
> >> support the freedom of even those whose opinions I do not agree with.
> >> Because when someone else's freedom is infringed upon then it's just a
> >> matter of time before my freedom is also infringed upon.
> >>
> >> My very personal and biased answers to the questions asked:
> >>
> >> 1. Should we allow content online that we wouldn't even think about
> >> showing in our sitting rooms and public places?
> >>
> >> In one word: yes. On the internet, the individual has more freedom to
> >> "switch off" what they don't want to view. Plus there are ways in which
> >> content providers can place restrictions so that minors etc cannot have
> >> access to controversial content. This is very personal to me because I
> >> currently have an online TV channel that shows content (rock music
> videos)
> >> that would normally not be shown on Kenyan TV.
> >>
> >> 2. Should the government be the morality cop when we as parents fail to
> do
> >> our duty?
> >>
> >> In one word: no. The answer to this question is in the question :-)
> >> Parents/Caregivers need to do their duty.
> >>
> >> 3. Where does third party liability start and stop? There are precedents
> >> here by the way where Google has actually taken down graphic Al-Shabaab
> >> videos and the US Government ordering Google to take down the video -
> >> Innocence of Muslims.
> >>
> >> I have never watched nor plan to ever watch graphic Al-Shabaab videos
> but
> >> I still don't think they should have been taken down. Censorship is
> >> censorship. Today it will be graphic Al-Shabaab videos, tomorrow it will
> >> be "graphic" rock 'n' roll videos. Even graphic videos have a story to
> >> tell, a lesson to teach, a warning to give.
> >>
> >> Just my two cents :-)
> >>
> >> Check out the Rock 'n' roll film festival, Kenya TV Channel!
> >> http://kenyarockfilmfestivaljournal.blogspot.com
> >> <http://kenyarockfilmfestivaljournal.blogspot.com/>
> >>
> >>
> >> On Wed, Feb 24, 2016 at 9:00 AM, Ali Hussein via kictanet
> >> <kictanet at lists.kictanet.or.ke <mailto:kictanet at lists.kictanet.or.ke>>
> >> wrote:
> >> Listers
> >>
> >> This may be of interest.
> >>
> >>
> http://www.businessdailyafrica.com/Corporate-News/Films-board-gives-Google-a-week-to-take-down-gay-song-video/-/539550/3089994/-/v8r0e2z/-/
> >> <
> http://www.businessdailyafrica.com/Corporate-News/Films-board-gives-Google-a-week-to-take-down-gay-song-video/-/539550/3089994/-/v8r0e2z/-/index.html
> >index.html
> >> <
> http://www.businessdailyafrica.com/Corporate-News/Films-board-gives-Google-a-week-to-take-down-gay-song-video/-/539550/3089994/-/v8r0e2z/-/index.html
> >
> >> It has become increasingly important for we as a nation to define our
> >> parameters when it comes to content.
> >>
> >> 1. Should we allow content online that we wouldn't even think about
> >> showing in our sitting rooms and public places?
> >>
> >> 2. Should the government be the morality cop when we as parents fail to
> do
> >> our duty?
> >>
> >> 3. Where does third party liability start and stop? There are precedents
> >> here by the way where Google has actually taken down graphic Al-Shabaab
> >> videos and the US Government ordering Google to take down the video -
> >> Innocence of Muslims.
> >>
> >> I suspect there's no easy answer to these pressing issues.
> >>
> >> Net Neutrality  is becoming an issue that needs our attention - and
> >> quickly.
> >>
> >> Ali Hussein
> >> Tel: +254 713 601113
> >>
> >>
> >> _______________________________________________
> >> kictanet mailing list
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> >>
> >> Unsubscribe or change your options at
> >>
> https://lists.kictanet.or.ke/mailman/options/kictanet/mildandred%40gmail.com
> >> <
> https://lists.kictanet.or.ke/mailman/options/kictanet/mildandred%40gmail.com
> >
> >>
> >> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
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> >> Unsubscribe or change your options at
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> https://lists.kictanet.or.ke/mailman/options/kictanet/kensimiyu%40gmail.com
> >> <
> https://lists.kictanet.or.ke/mailman/options/kictanet/kensimiyu%40gmail.com
> >
> >>
> >> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> >> for people and institutions interested and involved in ICT policy and
> >> regulation. The network aims to act as a catalyst for reform in the ICT
> >> sector in support of the national aim of ICT enabled growth and
> >> development.
> >>
> >> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> >> online that you follow in real life: respect people's times and
> bandwidth,
> >> share knowledge, don't flame or abuse or personalize, respect privacy,
> do
> >> not spam, do not market your wares or qualifications.
> >>
> >>
> >>
> >>
> >> From: simiyu mse <kensimiyu at gmail.com>
> >> Subject: Re: [kictanet] Films board gives Google a week to take down gay
> >> song video - Corporate News
> >> Date: February 24, 2016 at 9:31:54 AM EAT
> >> To: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
> >>
> >>
> >> Hello Mildred.
> >>
> >> Excellent points and just as you said, if you support the infringement
> of
> >> one's right then its only a matter of time before the axe is trained on
> >> yours.
> >>
> >> However, there is the element of promoting something that is illegal.
> >> Homosexuality is currently illegal in the country. The morality angle
> may
> >> be abit vague based on it's subjective nature but in terms of legality
> it
> >> is as clear as night and day.
> >>
> >> Whats your take on the matter being an online media stakeholder?
> >>
> >> Kind regards.
> >>
> >> ./ken
> >>
> >> The major problem is that there is no clear line as to what "morality"
> is.
> >> Each individual, each government has their take on what is moral. So
> who's
> >> right is it to say what is right and what is wrong? I do my best to
> >> support the freedom of even those whose opinions I do not agree with.
> >> Because when someone else's freedom is infringed upon then it's just a
> >> matter of time before my freedom is also infringed upon.
> >>
> >> My very personal and biased answers to the questions asked:
> >>
> >> 1. Should we allow content online that we wouldn't even think about
> >> showing in our sitting rooms and public places?
> >>
> >> In one word: yes. On the internet, the individual has more freedom to
> >> "switch off" what they don't want to view. Plus there are ways in which
> >> content providers can place restrictions so that minors etc cannot have
> >> access to controversial content. This is very personal to me because I
> >> currently have an online TV channel that shows content (rock music
> videos)
> >> that would normally not be shown on Kenyan TV.
> >>
> >> 2. Should the government be the morality cop when we as parents fail to
> do
> >> our duty?
> >>
> >> In one word: no. The answer to this question is in the question :-)
> >> Parents/Caregivers need to do their duty.
> >>
> >> 3. Where does third party liability start and stop? There are precedents
> >> here by the way where Google has actually taken down graphic Al-Shabaab
> >> videos and the US Government ordering Google to take down the video -
> >> Innocence of Muslims.
> >>
> >> I have never watched nor plan to ever watch graphic Al-Shabaab videos
> but
> >> I still don't think they should have been taken down. Censorship is
> >> censorship. Today it will be graphic Al-Shabaab videos, tomorrow it will
> >> be "graphic" rock 'n' roll videos. Even graphic videos have a story to
> >> tell, a lesson to teach, a warning to give.
> >>
> >> Just my two cents :-)
> >>
> >> Check out the Rock 'n' roll film festival, Kenya TV Channel!
> >> http://kenyarockfilmfestivaljournal.blogspot.com
> >> <http://kenyarockfilmfestivaljournal.blogspot.com/>
> >>
> >>
> >> On Wed, Feb 24, 2016 at 9:00 AM, Ali Hussein via kictanet
> >> <kictanet at lists.kictanet.or.ke <mailto:kictanet at lists.kictanet.or.ke>>
> >> wrote:
> >> Listers
> >>
> >> This may be of interest.
> >>
> >>
> http://www.businessdailyafrica.com/Corporate-News/Films-board-gives-Google-a-week-to-take-down-gay-song-video/-/539550/3089994/-/v8r0e2z/-/
> >> <
> http://www.businessdailyafrica.com/Corporate-News/Films-board-gives-Google-a-week-to-take-down-gay-song-video/-/539550/3089994/-/v8r0e2z/-/index.html
> >index.html
> >> <
> http://www.businessdailyafrica.com/Corporate-News/Films-board-gives-Google-a-week-to-take-down-gay-song-video/-/539550/3089994/-/v8r0e2z/-/index.html
> >
> >> It has become increasingly important for we as a nation to define our
> >> parameters when it comes to content.
> >>
> >> 1. Should we allow content online that we wouldn't even think about
> >> showing in our sitting rooms and public places?
> >>
> >> 2. Should the government be the morality cop when we as parents fail to
> do
> >> our duty?
> >>
> >> 3. Where does third party liability start and stop? There are precedents
> >> here by the way where Google has actually taken down graphic Al-Shabaab
> >> videos and the US Government ordering Google to take down the video -
> >> Innocence of Muslims.
> >>
> >> I suspect there's no easy answer to these pressing issues.
> >>
> >> Net Neutrality  is becoming an issue that needs our attention - and
> >> quickly.
> >>
> >> Ali Hussein
> >> Tel: +254 713 601113
> >>
> >>
> >> _______________________________________________
> >> kictanet mailing list
> >> kictanet at lists.kictanet.or.ke <mailto:kictanet at lists.kictanet.or.ke>
> >> https://lists.kictanet.or.ke/mailman/listinfo/kictanet
> >> <https://lists.kictanet.or.ke/mailman/listinfo/kictanet>
> >>
> >> Unsubscribe or change your options at
> >>
> https://lists.kictanet.or.ke/mailman/options/kictanet/mildandred%40gmail.com
> >> <
> https://lists.kictanet.or.ke/mailman/options/kictanet/mildandred%40gmail.com
> >
> >>
> >> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> >> for people and institutions interested and involved in ICT policy and
> >> regulation. The network aims to act as a catalyst for reform in the ICT
> >> sector in support of the national aim of ICT enabled growth and
> >> development.
> >>
> >> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> >> online that you follow in real life: respect people's times and
> bandwidth,
> >> share knowledge, don't flame or abuse or personalize, respect privacy,
> do
> >> not spam, do not market your wares or qualifications.
> >>
> >>
> >> _______________________________________________
> >> kictanet mailing list
> >> kictanet at lists.kictanet.or.ke <mailto:kictanet at lists.kictanet.or.ke>
> >> https://lists.kictanet.or.ke/mailman/listinfo/kictanet
> >> <https://lists.kictanet.or.ke/mailman/listinfo/kictanet>
> >>
> >> Unsubscribe or change your options at
> >>
> https://lists.kictanet.or.ke/mailman/options/kictanet/kensimiyu%40gmail.com
> >> <
> https://lists.kictanet.or.ke/mailman/options/kictanet/kensimiyu%40gmail.com
> >
> >>
> >> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> >> for people and institutions interested and involved in ICT policy and
> >> regulation. The network aims to act as a catalyst for reform in the ICT
> >> sector in support of the national aim of ICT enabled growth and
> >> development.
> >>
> >> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> >> online that you follow in real life: respect people's times and
> bandwidth,
> >> share knowledge, don't flame or abuse or personalize, respect privacy,
> do
> >> not spam, do not market your wares or qualifications.
> >>
> >>
> >> _______________________________________________
> >> kictanet mailing list
> >> kictanet at lists.kictanet.or.ke
> >> https://lists.kictanet.or.ke/mailman/listinfo/kictanet
> >
> > ---
> > Moses Karanja | @Mose_Karanja <https://twitter.com/Mose_Karanja> | PGP:
> > 0x1529552F
> > <
> https://pgp.mit.edu/pks/lookup?op=index&fingerprint=on&search=0x1529552F>
> >
> >
> >
> >
> >
>
>
> --
> Barrack O. Otieno
> +254721325277
> +254733206359
> Skype: barrack.otieno
>
> _______________________________________________
> kictanet mailing list
> kictanet at lists.kictanet.or.ke
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>
> Unsubscribe or change your options at
> https://lists.kictanet.or.ke/mailman/options/kictanet/nmutungu%40gmail.com
>
> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>

-- 
Grace L.N. Mutung'u
Nairobi Kenya
Skype: gracebomu
Twitter: @Bomu

<http://www.diplointernetgovernance.org/profile/GraceMutungu>

PGP ID : 0x33A3450F
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