• A section on regulation of the ‘creation’ of artistic content seeks to limit the imaginative terrain of artists and violates artistic freedom.
• Will citizens be required to get authorisation before watching a video at home.
The Statute Law (Miscellaneous Amendments) Bill 2020 seeks to amend a number of laws to align them with the Constitution. One law set for review is the archaic Films and Stage Plays Act Cap 222 of the Laws of Kenya, which was passed at the dawn of independence in 1962.
It was intended to curtail cultural and creative industries that were seen as inherently subversive at the time.
While the proposed amendments seek to make the Act more consistent with the Constitution, the review is a double-edged sword that should be critically looked at by all stakeholders to ensure a freer operating space for creatives.
Revising and updating the Film and Stage Plays Act will not only spur industry growth but also enhance artistic freedom of expression. This amendment offers Parliament an opportunity to also help Kenya Film Classification Board move away from the realm of censorship and to the enhancement of artistic freedom and expression.
The Creative Economy Working Group has for the last eight years engaged policymakers with the aim of re-writing the law related to arts and culture to reflect post-independence legislative thinking and intent.
Through various Freedom of Expression campaigns, CEWG has consistently demanded that government agencies be cognisant of the spirit of the Constitution and leverage the skills of the creative sector and its potential for job creation among the youth.
Though CEWG applauds the initiatives taken by the government agencies to amend the draconian law, there are portions of the Bill that would still stifle artistic freedom and need to be relooked at.
The Bill proposes to amend the definition of the term "Film" and to introduce new definitions of terms "Broadcast" and "Broadcasting", "Advertisement", "Commercial" and "Trailer".
The intention behind the revision of the term "Film" appears to be geared towards updating it to capture any new films produced using new technology. Films targeted at the Kenyan market distributed over the internet will now fall within the Board's purview.
This broad redefinition renders the proposed law arbitrary and prone to abuse. It also goes beyond the legal scope that is possible to narrow down in a court of law. The proposed bill also assumes a new role related to “…. regulation of the broadcasting... advertisements…. and classification of commercials...”. This proposed role for KFCB will usurp existing mandates stipulated in the Kenya Information and Communications Act, and implemented by the Communications Authority. Why should KFCB take up the functions of CA? Why the duplication of roles?
A section on regulation of the ‘creation’ of artistic content seeks to limit the imaginative terrain of artists and violates artistic freedom. Will citizens be required to get authorisation before watching a video at home?
The Bill has also moved into internet censorship through provisions related to ‘child online safety protection.’ This component needs deeper reflection so that, even as children are protected and societal values enhanced, there are minimal limitations of rights of access to the internet.
The law was enacted when the public accessed audiovisual content through television, radio, and movie theatres. The content was quite limited in a national population of about eight million people. It was, therefore, possible to preview all content before it was broadcast and to license all broadcasters. In the smartphone and internet age, things have shifted dramatically. Content is consumer-driven and the line between creators and consumers is blurred. Innovation is all around us and should not be stifled.
Furthermore, a closer look at the proposed changes reveals an expanding scope of the KFCB's mandate to the regulation of advertising and online content.
In a growing democracy, KFCB ought to be seen within a broader regulatory framework of ensuring controls while supporting industry growth. The agency ought to move from ‘regulating’ and censoring content by previewing and licensing, to monitoring and enforcement based on published content rating guidelines.
It defeats logic how KFCB will preview and license hundreds of thousands, if not millions, of online videos, sound recordings, advertisements, posters, trailers, or commercials created daily and shared on WhatsApp, broadcast radio and TV, YouTube, Facebook and Instagram, ViuSasa, or any other platforms. This provision will limit artistic freedom and efforts at job creation in fundamental ways.
The new legislation ought to support the creative sector to benefit from the technological advances made in the last decade. The internet has opened up opportunities for creatives to make and share content, access opportunities globally, and have their work paid for and consumed. In the post-Covid-19 recovery period, digital spaces ought to be open for the creative sector.
Kenneth is a communication specialist at Freedom of Expression Campaign by the Docubox East Africa Film Fund.