Recently, I sat for lunch in a restaurant that had TV screen every way you faced. They were all tuned to a television station that was airing the continental 24 hour music outlet, Channel O. The image on the screen was just the lips, male and female, in passionate kissing. The kissing went on for probably two or three minutes, interrupted intermittently by other scenes fitting across the screen. It was three o’clock in the afternoon.

Later that evening, at home, I tuned to another station also airing video music. The video was a Kenyan produced song with sexually explicit lyrics and footage. The singer invites his girlfriend to his house for a sexual fling. He asks her not to come with her friends because tonight he does not want an orgy. He wants her alone. The time? 9:30 p.m.

Pulled on Janet’s blouse, revealing her right breast

This had me searching my moral bearings and testing my knowledge on what is or is not permissible exercise of press freedom. Although there have been muted protests about some of the content coming out of our television and radio stations, no one appears to know what are the legal guidelines on what is permissible for broadcast-if any guidelines exist that is. How do other countries deal with decency in relation to broadcast material?

The Janet Jackson debacle is a good starting point. The music mega-star was called to perform on national television during half-time of the Super Bowl, America’s ultimate prime sporting event. Janet teamed up with another singer, Justin Timberlake, before a television audience estimated at 140 million viewers. In the course of their performance, Timberlake pulled on Janet’s top which gave way, revealing her right breast. The public was outraged.

Able to expect a high standard when it comes to programming

Describing the incident as “classless, crass and deplorable”, the chairman of the Federal Communications Commission (FCC), Mr. Michael Powell said he was seating with his two kids watching television when the breast was revealed. “We all as a society have responsibility as to what the images and messages our children hear when they’re likely to be watching television. I don’t think you need to be a lawyer to understand the basic concept of common decency here,” the official said.

Even the White House stepped in saying through its spokesman Scott McClellan: “Our view is that it is important for families to be able to expect a high standard when it comes to programming.” The stations that aired the footage, MTV and CBS apologized. So did Janet Jackson and Justin Timberlake. The FCC nevertheless swore to investigate the event and punish the station with a pecuniary fine. The amount of the fine is being estimated at several million dollars. 

In America, broadcast stations are regulated by the FCC. It can investigate and punish stations for infringement of the broadcast policy set up by the commission. The commission has a department to receive faints from the public about broadcast content and it ensures that broadcast stations do not infringe on the society’s sense of decency and morality. The position in Kenya is confusing. Broadcast stations are regulated on two fronts: The Ministry of Information and the Communications Commission of Kenya (CCK). The Ministry issues the broadcast licences and is supposed to regulate the conduct of the stations. CCK on its part allocates the broadcast frequencies and regulates their use.

To the best of my knowledge, none of the two has formulated a broadcast policy. Both also lack the legal regime for the creation of such a policy and the supervision of its adherence. While the Ministry seems to have the mandate to formulate a broadcast policy, it is CCK that seems to have the power to enforce such a policy.

Section 29 of the Kenya Communications Act provides that “a person who by means of a licensed telecommunications system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both”.

The Act however, does not authorize the Commission to define what is grossly offensive or obscene. It does not authorize the Commission to enforce this section. Apart from creating criminal offence, it gives no leeway for dealing with the various forms in which infringement can occur. That will no doubt be one of the dilemmas facing an independent commission which is examining the suitability of comments made on Kiss FM about Cabinet Minister Martha Karua.

Reasonable risk that children may be in the audience

The FCC, for instance, has define what is obscene and what is indecent. Its broadcast policy provides that obscene material may not be broadcast at any time. Indecent material, on the other hand, cannot be broadcast when there is a reasonable risk that children may be in the audience. Materials that may have patently offensive sexual preferences can therefore not be broadcast between 6 am and 10 pm. The powers given to the Commission to deal with infringements range from warning, fining and suspending or cancelling licences.

It is doubtful whether the Minister of Information or the Communication Commission of Kenya can have such leeway. Without a broadcast policy on which the licence of the broadcast policy on which the licence of the broadcaster is based, the two offices had to tread on a minefield in regulating the conduct of television and radio stations. Although we import our human rights values from the West, we often exercise freedoms without the restraints that the West itself places on such freedoms. It is amazing what restraints other countries put on behavior which we allow easily in our society.

Serve solely as drinking dens sometimes until late in the night

For instance, magazines with photos that can only be termed as pornographic are laid openly on news stands for all children to see. Sexually explicit lyrics and images are broadcast freely on television and radio. Films with sexually passionate scenes are broadcast on Saturday and Sunday afternoons. Parents take children to establishments that serve solely as drinking dens sometimes until late into the night. Here, children as young as three dance to sexually explicit lyrics, suggestively gyrating the underage loins at each other to the delight of their parents. 

The average parent will tell you that this is freedom. To their mind, that is how it’s done in the West. Well, at least going by what is coming on the television. Little do they know that the West would not allow such public indecency as is now common in Kenya. The indecency laws of the State of Texas have in fact been criticised as laws that would make the Ayatollahs cheer. “It is just the sort of thing you’d expect in Iran”, one critic says.