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Kenya: Government Requires Deletion of Video from Google’s Website

(Mar. 1, 2016) On February 23, 2016, Kenya’s Film Classification Board (KFCB) ordered Google to take a video off its website within one week, because the video depicted nudity and sexual situations between individuals of the same gender. (Stellar Murumba, Kenyan Film Board Gives Google One Week to Pull Down Gay Song Video, BUSINESS DAILY (Feb. 24, 2016), Open Source Center online subscription database, Doc. No. AFL2016022427859491.) Kenya outlaws homosexual behavior in its Penal Code and punishes it with prison terms that may be as long as 14 years.  (Penal Code, arts. 162-164, LAWS of KENYA ch. 63 (rev. 2012), available at United Nations Office on Drugs and Crime website.) In addition, distribution or exhibition of indecent content likely to “corrupt morals” is punishable with either imprisonment for two years or a fine of up to KS7,000 (about US$68).  (Id. art. 181.)

The KFCB Chief Executive, Ezekiel Mutua, stated that a letter had been sent to Google Kenya and to Kenya’s law enforcement agencies, requesting that the video be taken off the website and that action be initiated against both the creators and the distributors of the video. Arrest warrants have been issued.  The piece in question is a music video for the Kenyan version of the song Same Love, originally recorded in 2012 by two American hip-hop artists. (Murumba, supra.)  Mutua stated that “Kenya must not allow its people to become the Sodom and Gomorrah of the current age through psychological drive from such content.”  (Id.)  He also said that the local creators of the song should have asked for a recording license from the KFCB and did not do so.  (Id.)

In addition, the KFCB has said that the video promoted same-sex marriage, which the Board describes as contrary to the Kenyan Constitution. (Kenya Bans Gay Rights Video, KENYA NEWS.NET (Feb. 24, 2016).) The Constitution states that “[e]very adult has the right to marry a person of the opposite sex, based on the free consent of the parties.”  (The Constitution of Kenya (rev. 2010), art. 45(2), LAWS OF KENYA Embassy of the Republic of Kenya (Washington, D.C.) website.) The Constitution does not include sexual orientation as one of the grounds on which discrimination is not permitted.  (Id. art. 27(4).)

Statement from Google Kenya

According to Dorothy Ooko of the Google Kenya office, that office is “not aware of any request made in regards to that particular video … .” (Murumba, supra.)  She added that the message may have gone to Google in the United States, but she stated she had agreed to remove the video once notice is received and noted that individual citizens could also request that “bad” content be taken off the website.  Ooko stated that there has been only one past instance in which content was removed.  That material was a violent video of the terror group Al-Shabab mutilating Kenyans.  She noted that “[t]he content was very graphic and we removed it immediately, I doubt even Kenyans noticed it.”  (Id.)

Attacks on LGBT Persons in Kenya

Several human rights advocates have noted a number of instances of mob violence in Kenya against LGBT individuals. Jonathan Cooper, Chief Executive of Human Dignity Trust, has linked the laws against homosexuality to an atmosphere that permits such attacks to take place.  (Jonathan Cooper, Kenya’s Anti-Gay Laws Are Leaving LGBT Community at the Mercy of the Mob, GUARDIAN (Oct. 2, 2015).)  Cooper quoted Francis Wanjohi, a police commander in Kenya’s coastal region, who stated that “[p]olice are meant to protect everybody, and that is what we do. …  But again, you do not expect to be protected when you engage in criminal and unacceptable behaviour.”  (Id.)  Human Dignity Trust is a London-based organization that describes itself as “a legal charity that supports those who want to challenge anti-gay laws wherever they exist in the world.”  (The Human Dignity Trust: Legally Challenging the Illegality of Homosexuality, Human Dignity Trust website (last visited Feb. 26, 2016).)

Human Rights Watch has issued a report on the subject of violence against homosexual individuals in Kenya.  That report, written on the basis of in-person interviews and with the assistance of PEMA Kenya, a Mombasa-based organization that provides assistance to sexual minorities, recommends that the Kenyan legislatures, both national and local, “repeal laws that discriminate on the basis of sexual orientation, gender identity, or sex worker status” and “adopt comprehensive anti-discrimination laws that explicitly protect people of all sexual orientations and gender identities.”  (The Issue Is Violence: Attacks on LGBT People on Kenya’s Coast, Human Rights Watch website (Sept. 28, 2015).)