The debate sorrounding the publishing of the nude viral video of a 22-year-old Marion Naipei is still raging on, with Kenyans split on whose side to be—that of Naipei, or James Opande, the man who reportedly recorded and published the video online.

The controversy has re-ignited a fierce national debate on data privacy, consent and gender-based violence (GBV) in the digital age, as well as general morality in the modern society.

So what does the law says?

TV47 spoke to Silas Akiro, an Advocate of the High Court, to try and put the whole issue into perspective.

Did James Opande, a U.S based Kenyan nurse, break the law in recording and publishing the video?

This incident has placed the Data Protection Act, 2019, which was enacted to operationalise the Right to Privacy under Article 31 of the Constitution of Kenya (2010), into perspective.

According to Akiro, the nature of the video itself will make it very difficult for Naipei’s lawyers to prove criminality on the side of Opande. “The achievement of a criminal intent from the way I analysed the video, criminal intent will be the last option to take,” Akiro says.

The first approach Naipei should take, the advocate says, is “the dignity way”, given that under Article 28 of the Constitution, every Kenyan has the right to dignity.

“We are looking at two consenting adults and then eventually issues are exposed in public. Upon exposure, you see the humiliation. She is expressing real humiliation, and her family has been humiliated,” Akiro says.

He adds categorically that, “In terms of video recording and storage, James Opande cannot be found to be in the wrong. The only place he was wrong was in sharing the content of Marion Naipei.”

But what is consent in this case?

According to Akiro, consent is the permission: to be recorded, your data to be collected and for the collector to process and use that data to their benefit or the benefit for both of you.

However, the law requires that it is just not about consent, it must be an informed consent or rather explicit consent, where somebody is able to understand what he or she is consenting to.

In this case, Opande should have informed Naipei first if he is recording her, why he is recording her and explain to her what he will do with the video inside his phone. From there, Naipei would then go on to give consent or reject.

What should Naipei do?

In the event that Naipei did not give explicit consent to Opande initially before the recording, then he went on to publish the video, then she has a genuine case against him.

The issue of the viral video has forced the government to weigh in, with the Ministry of Gender, Culture, and Children Services describing the issue as “disturbing”, reaffirming  the constitutional protection of every person’s dignity, privacy, and bodily autonomy.

“The Ministry reaffirms that the dignity, privacy, and bodily autonomy of every person are inviolable… Any conduct that undermines these rights, whether through action, omission, or digital transmission, is unacceptable,” Cabinet Secretary Hanna Cheptumo stated.

According to Naipei, who spoke to Geoffrey Mosiria, Nairobi’s Chief Officer in charge of Citizen Engagement and Customer Service, Opande had promised to take her to the United States and had been in a romantic relationship with her for approximately one year.

“Trusting him, she could not resist, only to later be exposed on social media,” Mosiria explained.“ Marion is just a young woman trying to live her life. She believed she had found a partner.”

The Ministry’s statement directly addressed the severe ethical and legal breaches in the incident, highlighting the abuse of trust and power.

“The circumstances surrounding the recording and distribution of this material raise serious concerns regarding consent, responsible conduct, and compliance with existing legal and ethical standards, particularly in environments where individuals may be vulnerable,” CS Cheptumo noted.

She added: “We urge members of the public to exercise restraint and responsibility by refraining from the further circulation of such material and by avoiding commentary that may occasion additional harm.”