CONSTITUTIONAL CHALLENGE

Film board opposes viewing of gay film 'Rafiki' in court

Film is about two young women who fall in love with one another

In Summary

• KFCB boss says it is not necessary for the court to watch the film to determine the constitutionality of the films Act.

• Rafiki, which means "friend" in Kiswahili, is about two young women who have fallen in love.

A scene from the film 'Rafiki'
A scene from the film 'Rafiki'
Image: FILE

The Kenya Film Classification Board (KFCB) does not want the controversial ‘Rafiki’ film watched in court.

Rafiki, which means "friend" in Kiswahili, is about two young women who have fallen in love. Its director, Wanuri Kahiu, has applied to have the court watch it.

But KFCB boss Ezekiel Mutua says it is not necessary for the court to watch it for the determination of the constitutionality of the films Act.

Mutua was yesterday responding to Wanuri's  application for the court to watch it before making a determination in the case.

Wanuri has even written to the deputy Registrar of the Constitutional Court requesting for audio visual equipment to enable the court to play the film during the hearing. The letter was written by Mugeria, Lempaa and Kariuki advocates in February this year.

Mutua argues that application amounts to admitting new evidence without the leave/permission of court and without compliance of the Evidence Act.

“The Evidence Act lays down the conditions which must be met before electronic records can be declared admissible. Petitioners have not satisfied any of the conditions stipulated by the Evidence Act in relation to production of electronic records as evidence before the court. The film we assume shall be presented in some electronic format for exhibition before court,” he said.

On April 26, last year, Wanuri’s film was banned by the KFCB under the Films and Stage Plays Act, prompting the director to contest the ban in court. 

Wanuri is now contesting the constitutionality of the ban on grounds that it is a violation of freedom of expression.

She wants the court to determine whether banning the film was a violation of her rights under the Constitution.

“I fear that the Act and guidelines under which the film was banned are a threat to free speech and media freedom. The decision to restrict the film was arbitrary, unconstitutional and a violation of my right to freedom of expression which includes freedom of artistic creativity,” she said.

Last year, Justice Wilfrida Okwany temporarily lifted the ban to allow the director to submit it to the Oscars selection committee Kenya for entry to the 2019 Oscars Award. The suspension was for seven days.