How to be a moral policeman in Kenya today

What you need to know:

  • It is criminal, for example, to trade in or promote Hitler’s paraphernalia in Germany even if doing so in other jurisdictions like the US is perfectly legal.
  • In China, it is criminal to discuss the failed 1989 uprising popularly known as the Tiananmen Square Protests.

Ezekiel Mutua, the CEO of the Kenya Film Classification Board (KFCB), was at it again this week, making many wonder if he is the new self-imposed moral cop in town.

After threatening to ban Netflix for entering the Kenyan market without consulting KFCB, he has requested that Google take down a YouTube music video that he said portrays and promotes gay culture in Kenya.

We must interrogate his request before dismissing this request, because taking down a so-called offensive online video has technical, legal and moral dimensions.

The technical aspect is always the easiest. Google has a take-down policy that allows any entity or individual to formally ask that content to be removed from Google services like YouTube. Legally, it is easier for Google to remove content that is in clear violation of the existing laws of particular jurisdictions.

For example, in Germany, matters relating to Hitler’s ill-informed exploits during the Second World War are considered illegal and cannot be promoted, whether offline or online. As such, it is criminal to trade in or promote Hitler’s paraphernalia in Germany even if doing so in other jurisdictions like the US is perfectly legal. Cultural context and historical experience are therefore very significant in determining the question of legality.

UNSETTLED QUESTION

Another example is China, where it is criminal to discuss the failed 1989 uprising popularly known as the Tiananmen Square Protests. Of course, such discussions are alive and freely had outside China since the rest of the world is more sympathetic to democratic protests.

Fortunately, Google, Facebook and other content providers have extensive technical algorithms that allow them to make content available in one geographic location while denying access to it in others. So while users in Kenya can search for ‘Tiananmen Square Protests” with abundant results. Users in China who attempt a similar search will get a blank page and perhaps a visit from the Chinese secret service.

So, from a technical point of view, Ezekiel Mutua’s request is quite valid and doable.

In the Kenyan case, the legal dimension is what is contentious. Mr Mutua cites the Penal Code Section 162 to 165 as being very clear and straightforward in criminalising homosexual activity on the basis of it being on the list of unnatural offenses.

By this law, Google is required to respect our laws and subsequently take down the offending video, or at least restrict its accessibility for users domiciled within our borders.

Others argue, however, that these clauses were the subject of a legal tussle that never really settled the question of what is natural or unnatural, so they feel it would be premature to conclude the video is offensive in the context of Kenyan law.

SPLIT HAIRS

Then there is the moral dimension. Many a time, what is legal may be completely unacceptable from a moral perspective. Prostitution and abortion are very legal in many developed countries, even if they remain morally unacceptable in those very countries.

The legality or otherwise of an issue can never replace that internal compass that speaks to humankind about what is right and what is wrong.

In other words, lawyers and judges may want to split hairs on what is legal or otherwise, but the choice of what content to watch or not watch will ultimately remain an individual one.

What cannot be debated is that the government, through KFCB, has an obligation, both online and offline, to restrict the transmission of adult content to vulnerable groups, such as children.

Mr Walubengo is a lecturer at the Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @jwalu