- Petition was filed by Micheal Kioko seeking to overturn KFCB decision to allow screening of the film in Kenya.
- Judge Ogola said the issues in the petition had already been dealt at the petition filed by the director of the film Wanuri Kahiu.
Image: THE STAR
The Mombasa High Court has thrown out a petition seeking to lift the ban imposed on lesbian film Rafiki by the Kenya Film Classification Board.
The 2018 film directed by Wanuri Kahiu was banned by KFCB for portraying same sex romance.
The film was the first from Kenya to be screened at the 2018 Cannes Film Festivals. It was on the path to be submitted for Oscars before the ban was imposed.
A Nairobi court allowed for a seven-day age-restricted screening to meet the requirement of being screened or distributed in Kenya.
Micheal Kioko filed another petition against KFCB and the AG at the Mombasa court in an attempt to have the ban lifted.
Judge Erick Ogola riuled that the matter had already been determined by a competent court and therefore the petitioners could not pursue it.
The judge said while the petitioner in the present case was different from the one in Nairobi, the respondent and the cause of action is the same.
He said both petitions raised the same issues on the decision by KFCB to mark the film as “restricted”, a decision that limited the film’s right to freedom of expression.
“The petitioner had argued that the current petition had been brought for the interest of the public. However, the problem is the cause of action, which had already been exhausted in Nairobi petition no 313 of 2018,” said the judge.
The Nairobi case, which was dismissed by the court, had been filed by Wanuri Kahiu and another person, but the respondent was KFCB.
In his petition, Kioko said the board violated freedom of expression when it banned the distribution of the film.
He argued that he does not see any reason why a film on lesbianism would be restricted while other films depicting corruption, theft, assaults, vigilantism and even murder are not prohibited.
“The KFCB could still apply lesser restrictive means including rating the film as had been done in other open democratic countries. The decision of the board fails the test of the law,” he said.
Kioko further said the Constitution does not create an offence against loving a person of the same sex as depicted in the film.
He had filed the case seeking for the court to declare that the board violated their constitutional rights when it banned the distribution, exhibition, broadcasting, and possession of the film in Kenya.
The Office of the Attorney General and KFCB asked the court to strike out the petition on grounds that issues being raised in the case had been conclusively dealt with by a Nairobi court.
-Edited by SKanyara