• In the proposed law, pornography is treated as any data – visual or audio – that depict persons engaged in sexually explicit conduct.
• The bill is due for second reading following its approval at the committee stage, after which MPs can vote to approve or reject the legislation.
A House team has approved Garissa Township MP Aden Duale’s bid to criminalise pornography in the country, despite intense lobbying by rights groups against the proposal.
The National Assembly's ICT committee has turned down requests by bloggers, journalists, and human rights defenders for the deletion of the proposal.
The Communications Authority of Kenya had also recommended the deletion of the provisions banning pornography, citing violation of Article 33 and Article 34 of the Constitution.
Duale seeks to amend the Computer Misuse and Cybercrimes Act to make it illegal for anyone to publish pornography through a computer system.
The MP’s bill further outlaws the production, distribution, transmission, sale or offer for sale of any pornographic material as well as possession of the same in a computer system.
A Sh20 million fine has been proposed for any contravention of the law, which only excuses publication of such material for academic purposes.
In the proposed law, pornography is treated as any data – visual or audio – that depicts persons engaged in sexually explicit conduct.
Should MPs pass the law – one step away –, artistes, musicians, and video content producers, including posts on social media that can elicit prurient interest, would risk prosecution.
The Committee on Communication, Information and Innovation, chaired by Marakwet West MP William Kisang’, held that the clause is retained.
The committee cited the case by the Bloggers Association of Kenya against the Attorney General, where the court ruled that the Act does not infringe fundamental rights.
“The stakeholder proposes the deletion of the clause, but does not offer alternatives of addressing the vice of pornography. The committee recommends the clause be retained,” the ICT committee report reads.
The lawmakers differed with civil society organisations that had indicated that the proposed ban would violate the Constitution. The organisations include Article 19 Eastern Africa, Access Now, Bloggers Association of Kenya, Defenders Coalition, Kenya ICT Action Network, and the Kenya Union of Journalists.
“The use of the word knowingly is proper as it provides for the intention (mens rea) component for the offence, unlike a strict liability offence which doesn’t have a mens rea component,” the MPs said.
The committee has also retained the clause providing that the CA recommends websites to be rendered inaccessible within the republic.
CSOs submitted that the state is under the duty to demonstrate that limitations on fundamental rights and freedoms are permissible in a democratic society.
They further held that the right to freedom of expression “can only be legitimately restricted where it amounts to propaganda for war, incitement to violence, hate speech, and advocacy for hatred.”
“The proposed ban on pornography was not one of the permitted grounds specified in Article 33 of the Constitution of Kenya and will violate the right of freedom of expression,” the CSOs said.
The organisations also hold that under international law, pornography is not a form of expression that may be restricted.
“Attempts to regulate pornography are rooted in morality, culture, and tradition arguments,” the CSOs said, adding that the bill could be used to police content, expression, and communication.
They held that the enactment of the law could affect legitimate content that is protected by the supreme law, which provides for freedom of artistic creativity.
“Ordinary citizens who post their photos and videos on social media platforms, and journalists, creatives, and artistes who depict nudity, sex, and eroticism in books risk prosecution,” the rights defenders said.
CSOs also held that the defence that the bill would be for the public good, as provided in the amendment, was insufficient, adding that the Sh20 million fine or 25 years in jail is harsh and unreasonable.
MPs have however remained adamant that the contested sections are helpful and will be retained and have proposed amendments to entrench the same.
“Having considered the Computer Misuse and Cybercrimes (Amendment) Bill, 2021, recommends that the House approves the bill with amendments as proposed,” the committee said.
Edited by A.N