Can police confiscate your sex toys? What the law says

This story has significance for readers across Kenya and beyond.

The legality of police raids does not end with an arrest. Investigators must also prove that searches, seizures and the collection of evidence complied with constitutional safeguards, or risk having crucial evidence thrown out in court, lawyer Victor Nzioki says.

His remarks come in the wake of last week's police raid on a house in Nkoroi, Ongata Rongai, Kajiado County, where officers arrested 30 women aged between 19 and 27 and seized dozens of sex toys, laptops fitted with cameras, internet devices and other filming equipment they allege were being used to produce explicit digital content for commercial distribution.

The operation was conducted at about 4am on July 24 after a tip-off from members of the public. Officers recovered seven laptops fitted with cameras, 42 dildos, 17 boxes of vibrators, four Wi-Fi devices and other electronic equipment. The suspects were taken to Ongata Rongai Police Station and were expected to be arraigned in court the following day.

Nzioki says police may lawfully seize electronic devices and other property where they reasonably believe the items constitute evidence of a criminal offence, but only if they comply with the Constitution and the legal procedures governing searches and seizures.

“Producing explicit adult content for commercial purposes can trigger several criminal laws in Kenya. Investigators are not simply looking at possession of adult items but whether there is evidence of commercial production, distribution or exploitation,” he says.

Depending on the evidence, prosecutors could rely on several laws, including the Penal Code, the Computer Misuse and Cybercrimes Act and the Films and Stage Plays Act, each of which addresses different aspects of producing or distributing obscene material.

Section 181 of the Penal Code criminalises the public exhibition or circulation of obscene material, while Sections 153 to 155 deal with managing or benefiting from activities associated with commercial sexual exploitation.

If investigators establish that explicit content was distributed electronically, they may also invoke Section 37 of the Computer Misuse and Cybercrimes Act, which criminalises the unlawful distribution of obscene or intimate images through telecommunication networks.

Where videos are commercially produced without the necessary approvals, authorities may also rely on the Films and Stage Plays Act, which regulates the production of audio-visual content through licensing by the Kenya Film Classification Board.

However, lawyer Nzioki says the legality of any seizure depends on whether investigators followed the proper legal procedure.

Under Sections 24 and 26 of the Criminal Procedure Code, police officers have powers to enter premises and may use reasonable force where access is denied while executing lawful duties.

Ordinarily, officers are required to obtain a search warrant issued by a magistrate under Section 118 of the Criminal Procedure Code before conducting a search.

Where police conduct a warrantless search, they must later demonstrate that obtaining a warrant would have defeated the purpose of the investigation, as provided under the National Police Service Act.

“The Constitution also requires that arrested persons be presented before court within 24 hours unless exceptional circumstances exist,” the lawyer says, citing Article 49 of the Constitution and the Criminal Procedure Code. Failure to comply with constitutional safeguards can weaken a prosecution’s case.

“Electronic evidence such as laptops, mobile phones and cameras can be excluded by the court if investigators fail to obtain the evidence lawfully or cannot demonstrate a proper chain of custody.”

Mr Nzioki noted that Article 50(4) of the Constitution allows courts to reject improperly obtained evidence where admitting it would render a trial unfair.

The High Court has previously reinforced the need for prosecutors to prove that allegedly obscene material was intended for commercial distribution rather than mere private possession.

For example, in a past Mohamed Ahmed v Republic (2018) case, the lawyer says the court overturned an obscenity conviction after finding that prosecutors had failed to establish the commercial element required under the law.

Similarly, Kenyan courts have upheld Section 37 of the Computer Misuse and Cybercrimes Act, ruling that restrictions on the distribution of obscene digital material are a justifiable limitation on freedom of expression because they serve the public interest in protecting morality.

Sex toys remain prohibited imports

The raid also comes at a time when the sale of sex toys on social media has increased despite their importation being prohibited under Kenyan law.

Although, traders have become more discreet to avoid direct advertising, these products are being marketed through social media platforms, especially on TikTok. Many of the advertising videos use coded marketing techniques where sellers are seen to verbally describe unrelated items while briefly displaying sex toys before directing interested buyers on how to complete their purchase.

The Kenya Revenue Authority (KRA) has previously warned that the country continues to experience an influx of smuggled sex toys despite their classification as prohibited goods under the Second Schedule of the East African Community Customs Management Act (EACCMA).

Speaking to Nation Lifestyle in a previous interview, former KRA Chief Manager for Border Control and Enforcement Daniel Wambua said the prohibition is based not only on revenue considerations but also on public health and safety concerns.

Mr Wambua explained that prohibited goods differ from restricted goods, which may be imported only under specific licenses. Sex toys fall under the category of prohibited goods.

Under Section 200 of the East African Community Customs Management Act, anyone convicted of importing prohibited goods is liable to imprisonment for a term not exceeding five years, a fine equivalent to 50 per cent of the dutiable value of the goods, or both.

The law further provides that under Section 210(a) prohibited goods are liable to forfeiture, which allows customs authorities to seize the items once they are intercepted.

However, Section 212(2) of the Act provides an exception where prohibited or restricted goods were shipped without the shipper’s knowledge of the prohibition and before such information could reasonably have been available at the port of shipment. In such cases, the goods may not be forfeited but can instead be re-exported or otherwise disposed of as directed by the Commissioner, while remaining under customs control.

Mr Nzioki, however, notes that although the commercial production of explicit content may attract criminal prosecution under the Penal Code and the Computer Misuse and Cybercrimes Act, the sale or possession of adult novelty items is treated differently.

“The importation of sex toys is primarily handled as a customs offence under the East African Community Customs Management Act. In most cases, enforcement centres on seizure of the goods and customs penalties, unless investigations uncover other criminal offences,” the lawyer says.

Despite the stiff penalties, KRA says smuggling persists because importers avoid the large consignments that can easily be detected by scanners at ports of entry. The products are instead brought into the country in small quantities through their passenger luggage concealed among personal belongings.

Additionally, Kenya’s position as a regional trade and transport hub has also complicated the enforcement efforts. Customs officials have previously warned that some prohibited goods declared as transit cargo destined for neighbouring countries are illegally diverted into the Kenyan market before reaching their intended destinations.

Reporting originally appeared via Nation Africa. Read the full source for additional context.