By Melanie Nathan - What should American corporations such as Netflix do when the criminalization of LGBTQ+ people directly impedes their commitment to equity and inclusion and when they could be seen to be complicit in the criminalization of LGBTQ+ people?
Should the public boycott a corporation that succumbs and operates under anti-homosexuality penal codes or should we insist that our business presence is an opportunity for change?
Over 70 countries, with 32 in Africa, have penal codes that criminalize sexuality and gender identity. That means in a country such as Kenya, if you are LGBTQ+, you are in effect, a “wanted bank robber.” These penal codes impose more than the threat of arrest, years in prison, steep fines, and sometimes death penalty. It licenses state and non-state actors to abuse and persecute LGBTQ+ people with impunity.
While directing African Human Rights Coalition, not a day goes by that I do not hear of the “corrective rape” of a lesbian, the vicious mob attack of a gay man, or the murder of a non-binary person, just to mention a slice of what I see, in a criminalizing country such as Kenya.
Many American companies, such as Netflix, operate and provide services in these countries.
Recently the acting CEO of the Kenya Film Classification Board (KFCB) Chris Wambua, asserted that all films containing LGBTQ+ related content are illegal in Kenya. He publicized that the KFCB authority is currently working with Netflix to ensure that access to LGBTQ+ movies and series are barred from being shown in Kenya. Wambua also said that the country is against LGBTQ+ relationships. Wambua noted: “As we rate and classify content, we also consider other applicable laws. If there is any content that normalizes, glorifies same-sex relationships, our position in Kenya has always been to restrict and not to broadcast, exhibit or distribute that kind of content within the borders of the country.”
Wambua added that while there are multiple platforms highlighting same-sex content online, the Kenyan government is actively taking action to block access to the content in Kenya. “Most of them are restricting; because of our discussions with Netflix, they are curating their classification system that is very aligned with our laws with the view of ensuring that in future once we sign the agreement, some of this content is not visible at all within the republic.”
Section 165 of Kenya’s Penal Code exacts prison terms from 5-7 years for LGBTQI+ same sex relations. While prosecutions are rare, it is how the law is applied that is extremely dangerous. This code gives license to the ensuing reparative therapies, forced marriages, blackmail, extortion, kidnappings, unlawful detentions, assaults, mob attacks, so called “corrective” rape and the killings of LGBTQ+ people. For LGBTQ+ people there is nowhere to turn because reporting an assault or rape by a gay, lesbian, bi or trans person invariably results in the victim being further abused, and the perpetrator being hailed, after all the LGBTQ+ victim is a “bank robber!”
This past week I reached out to Netflix: “I am a country conditions expert witness in the U.S. immigration courts for LGBTQ+ asylum seekers from 17 different African countries. I appear in court to explain to the US government why a gay man, lesbian, bisexual, trans, queer, or intersex person should be granted asylum in this country and that if deported they will be sent back to likely death. My written reports average 40 pages where I elucidate the story of the asylum seeker who is usually severely traumatized by the persecution, the extreme violence and the ongoing threat to life and limb. For this person no amount of film showing or film banning can justify what they have been through. I invite you to read one of these redacted reports so Netflix can see what is being fostered when one negotiates with a government or authority that persecutes people based on sexuality or gender identity.” I noted further: “At the same time I understand that if you simply cut off service to a country like Kenya, the gays will be blamed and the backlash will be worse for the LGBTQ+ community which will serve as scapegoats. This is sensitive because an African sovereign government does not want to be dictated to by westerners – as they do believe that the “scourge and abomination of homosexuality” is an American and Western import. This we know is not true. Penal codes were delivered to Kenya by the Western Colonizer – and the truth is that criminalization is the Western import. It is the religious extremists that have caused Africa to keep these codes while the west moves toward equality.” I asked these questions: “Has Netflix discussed this with any stakeholders from the LGBTQ+ community in Kenya? Has Netflix engaged any asylum seekers or refugees fleeing Kenya? Has Netflix engaged any human rights organizations present in Kenya? African Human Rights Coalition is the only American based organization dedicated solely to LGBTQ+ human rights advocacy and humanitarian services on behalf of LGBTQ+ people in and from African countries. We are on the ground, led by those with direct experience. Yet when we reached out to Netflix, twice, we did not receive a reply nor a comment for this proposed article. Is it all about the commerce and not at all about the humanity?
From what I hear there is some form of draft agreement between Netflix and the Kenyan Government. By negotiating with Kenya on this issue of content, without consultation with stakeholders, Netflix is choosing to participate in the criminalization of LGBTQ+ people. The denial of one’s right to one’s human sexuality is one of the greatest injustices that can be perpetrated by country on an individual. Netflix has an opportunity to open a meaningful dialogue that could lead to a better understanding of human sexuality. Has this been signed into any deal? At the very least a conversation by Netflix with those directly impacted ought to be a starting point.
Netflix has abandoned the embattled LGBTQ+ community of Kenya if it has not engaged them and explored using its platform to seek inroads into better understanding. It has also failed its commitment to LGBTQ+ America and the rest of the world which cares deeply for its global family. It is a lost opportunity to improve the hopeless and hostile climate for the thousands of LGBTQ+ Kenyans who are not just being robbed of streaming movies, but also their basic human rights, freedom, and potentially their lives.
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