•Kenya has moved on and bans, such as those imposed on the Kenya National Drama Festival and Rafiki film cannot be justified as it constitutes a limitation of the freedom of expression.
•There is an urgent need to overhaul the laws and policies governing the creative sector if we want to match global standards at all.
There is an urgent need to liberate and free Artistic Expression in Kenya, with the ongoing unorthodox moves by the Kenya Film Classification Board (KFCB) of banning, restricting and condemning creatives work on grounds of the clean content campaign.
KFCB also intends to repeal the contentious Film and Stage Plays Act CAP222 by renaming it the Kenya Film Act. This will dissolve Kenya Film Commission, leaving KFCB at the helm.
This is being implemented without consultation or involvement of key stakeholders, in the creative sector in particular the filmmakers. Indeed, the dangers are real.
Artists and creatives in Kenya such as Bahati, Wanuri Kahiu, King Kaka, Eric Omondi, Otieno Aloka among many others, have had their creative works, banned, pulled down, impounded, contracts cancelled, threatened, and arrested.
Others have even been sentenced to jail, through the use of draconian laws such as the Film and Stage Plays Act Cap 222 and the Kenya Film Classification Board Guidelines 2012.
The increased misuse of the film laws and policies in the country by the people in the authority under the guise of cleaning content and moral policing is largely unwarranted or even uncalled for. It is more of a pretext, to silence dissenting voices or voices of reason of our artists and artworks.
According to a new report dubbed The State of Artistic Freedom 2021, one of the key obstacles for freedom of artistic expression in Kenya in 2020 was the Film and Stage Play Act Cap 222, requiring licencing and authorisation from the KFCB before audio-visual content can be created or distributed.
In a year when artists and the creative sector have suffered the great loss of revenue and had challenges fending for their livelihood due to Covid-19 restrictions imposed on cultural events and gatherings, such oppression to creative voices and the shrinking of the creative space have adverse effects on the entertainment sector.
Kenya, being a democratic country that prides itself in having one of the most progressive constitutions in the world, should allow Freedom of Expression on creative works, to stir public discourse on various topics, provoke, entertain, persuade and dissuade at the same time.
Instead of stifling free space and making it difficult for creatives to benefit from the lucrative entertainment industry, a public institution such as KFCB that is supported by taxpayers’ funds including those of creatives, should create an enabling environment for creatives to participate in nation-building and development.
What state officials and institutions should understand is that freedom of expression may mean that we have to tolerate some art that is offensive, insulting, outrageous, or just plain bad.
But it is a small price to pay for the liberty and diversity that form the foundation of a free society. Artwork such as film has emerged as a powerful instrument not only for education, culture, and leisure, but also for highlighting government efforts at spurring its development agenda.
The KFCB leadership should borrow a leaf from Justice David Majanja, who while ruling in 2013 on the play Shackles of Doom by Cleophas Malala, in a case brought by activist Okiya Okoiti Omtata, noted: “Artistic expression is not merely intended to gratify the soul. It also stirs our conscience so that we can reflect on the difficult questions of the day. The political and social history of our nation is replete with instances where plays were banned for being seditious or subversive.
"This is the country of Ngugi wa Thiong’o, Micere Mugo, Francis Imbuga, Okoth Obonyo and other great playwrights who through their writings contributed to the cause of freedom we now enjoy”.
Some plays were banned because they went against the grain of the accepted political thinking.
Kenya has moved on and bans, such as those imposed on the Kenya National Drama Festival and Rafiki film cannot be justified as it constitutes a limitation of the freedom of expression.
I concur with the judge that Kenya is not a weak democracy whose foundations cannot withstand artistic works that challenge socio-political orthodoxy.
From the court’s judgement, one can draw several positive conclusions. First and foremost, that artistic creativity is anchored and protected in the Constitution.
There is an urgent need to overhaul the laws and policies governing the creative sector if we want to match global standards at all. One thing we must be cognizant of is that the Kenya Classification Guidelines 2012 were operationalized while being ungazetted, and not contained in any regulations, and having no statutory underpinning.
The guidelines are not law and the limitation of freedom of expression through the Guidelines cannot amount to a limitation of freedom of expression “provided by law” in Article 24 of the Constitution. These laws were used to adjudge the Rafiki case and rule in favour of KFCB before being gazetted.
When delivering its judgment on the constitutionality of the guidelines in the Rafiki case, the court acknowledged the guidelines as not being law, but did not declare them unconstitutional on the grounds that it would throw the industry in a state of confusion. Instead, the Board was instructed to align them with the law within one year.
To creatives, this is what amounts to confusion and a serious violation. Furthermore, the grounds for such restrictions, banning, condemning, cancellations, arresting and sentencing to jail for artists have nothing to do with the four limitations in Article 33(2): incitement to violence, propaganda for war, advocacy of hatred and hate speech; and therefore, have no constitutional grounds.
It is about time creatives come together and fight for their Freedom of Expression as guaranteed by the Constitution of Kenya or else the status quo will remain as it was since 1963 and before the colonial era.
The author is Communication and PR Specialist -Freedom of Expression Campaign.