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

Wed Feb 24 15:01:52 EAT 2016

Thank you Moses, Grace et al. I have learned a lot today!

On Wednesday, February 24, 2016, Grace Mutung'u (Bomu) via kictanet <
kictanet at lists.kictanet.or.ke> wrote:

> 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
> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','kictanet-request at lists.kictanet.or.ke');>
>> >> wrote:
>> >>
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>> >> When replying, please edit your Subject line so it is more specific
>> >> 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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','kensimiyu at gmail.com');>>
>> >> Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','kensimiyu at gmail.com');>
>> >> <mailto:kensimiyu at gmail.com
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','kictanet at lists.kictanet.or.ke');> <mailto:
>> kictanet at lists.kictanet.or.ke
>> <javascript:_e(%7B%7D,'cvml','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
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>> 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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>> >> sector in support of the national aim of ICT enabled growth and
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>> >>
>> >> _______________________________________________
>> >> kictanet mailing list
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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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','kictanet at lists.kictanet.or.ke');> <mailto:
>> kictanet at lists.kictanet.or.ke
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','kictanet at lists.kictanet.or.ke');> <mailto:
>> kictanet at lists.kictanet.or.ke
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','kictanet at lists.kictanet.or.ke');> <mailto:
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>> <javascript:_e(%7B%7D,'cvml','kictanet at lists.kictanet.or.ke');>>
>> >> https://lists.kictanet.or.ke/mailman/listinfo/kictanet
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>> >>
>> >> 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
>> <javascript:_e(%7B%7D,'cvml','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
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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
>
>

-- 
Check out the Rock 'n' roll film festival, Kenya TV Channel!
http://kenyarockfilmfestivaljournal.blogspot.com
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