Kenya’s porn policing is waste of public resources

Posted on August 8, 2016 03:11 pm

Am a libertarian but i always support any initiative that protects under age from sexual materials of any kind but what I don’t give a backing is when the state decides to use national resources to police porn online.Its a mission in futility and waste of time.I have seen Kenya’s legislative provisions that when they come into force bans certain acts in online pornography, with the effect of bringing video on demand services like Netflix into line with the Kenya Film Classification Board R18 standard that applies to physical films and DVDs sold in shops.Proponents argue that all that has been done is to ensure that the same rules apply to the online and offline worlds, as the regulations only extend the law that already applied to physical copies of pornography to that delivered digitally. And while it might sound logical that the same laws that apply to both this is not always straightforward.For instance, transposing of offline laws to the digital world can sometimes result in unacceptable levels of intrusion into the right to free expression, far outweighing the benefits intended to be achieved by the law. The problem on this occasion, however, lies with the law regulating pornography itself.Kenya has always had a fairly rigid approach towards the control of pornography, with checks on content produced both within and outside the country. Adult pornography has been mainly regulated which prohibits the publication or distribution of obscene material, and other legislation prevent pornography deemed infringing entering Kenya from abroad.But the rise of the internet changed this situation substantially, as pornographic material made and hosted abroad under different jurisdictions suddenly became accessible in Kenya, fundamentally undermining the influence government had over controlling pornography within its borders.

This led to a rethink about new ways of retaining that control, the result of which has been a series of new laws, most notably the extreme pornography law that became a law in 2015 and which was used to ban the local version of Project X that was to be held earlier this year.This criminalised the possession of what it called extreme pornography, a first for adult pornography, as prior to this it was not an offence to merely possess adult pornography for private consumption. Included in this definition were a wide range of bondage and sado-masochistic events conducted between consenting parties. The pretext was to prevent harm, but there is no conclusive evidence of harm to justify its criminalisation.The possession offence for extreme pornography has been subject to a lot of criticism as being overly broad and infringing rights to free speech, privacy, thought and conscience, among others. The real intention was clear that if the Kenyan government cannot regulate the producer based outside Kenya, instead it targets the consumer in Kenya and so reasserts its control.It is worth noting that not all pornography is obscene and in my view is that the standard of obscenity is determined through a deprave and corrupt test. This is very much a subjective test and in fact a dynamic one too. Society’s perception of what is acceptable or obscene changes over time. Ultimately it’s a court and jury that decide whether any material is obscene or not. However, it appears from recent cases that the prosecution service’s understanding of obscene does not necessarily match the public’s perception. In several cases in Kenya, jury rejected the prosecution’s argument that for example the depiction of fisting and urination was obscene. The new regulations that gave Kenya Film Classification Board unparalleled powers have come into force, which apply only to those services regulated by the Communication Authority of Kenya, have made the situation even worse. These require that only sexual content that conforms to the Kenya Film Classification Board R18 classification can be made available through video on demand services like Netflix.

But the Kenya Film Classification Board guidelines dictate an even lower threshold than the guidelines under the obscene definition, meaning therefore that an even wider range of sexual activities will be banned.While some of these activities are illegal anyway through other legislation and should remain so, bestiality, necrophilia, child abuse imagery, it makes no sense for an act that is perfectly legal for consenting adults to perform to suddenly be deemed depraving, corrupting, and ultimately illegal just from being committed to video.The general tendency to demonise adult pornography in Kenya thanks to its neo colonial conservatism, mainstream sexual tastes is alarming and the country has World’s fourth highest HIV AIDs infection rates in the World.One wonders whether Kenyans have learnt any lessons from what happened in their western neighbour Uganda in early 1990s when the disease left millions without relatives.Clearly the Kenyan government has an interest to protect children, both in the context of child abuse images and also the separate issue of children accessing content that is inappropriate for them. However to control adult pornography in the guise of preventing harm in the absence of any evidence to support such claims, and in the process imposing a particular moral view on the public, must be challenged.In the age we live in, norms and morals are not prescribed from Kenya Film Classification Board but are influenced by a variety of factors, including those shaped in cyberspace. The law as a tool for controlling behaviour will lose its legitimacy and respect if it does not reflect the norms and values of those who are bound to obey it. It is about time Kenya Film Classification Board accept hardcore pornography is the new softcore and stop wasting public resources trying to moralise the society.

Contador Harrison