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Article by Mugambi Kiai, Gakii Winfred and Sigi W. Mwanzia,
“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
― John Stuart Mill, On Liberty
This three-part series explores the gag on free speech and the resulting violations and infringements that Kenyan officials meted out to Kenyan individuals by way of two unconstitutional laws: the Computer Misuse and Cybercrimes Act (CMCA) 2018 and the Kenya Films and Stage Plays Act (CAP 222).
In Part III of the “Gagging Free Speech” series, we examine the Kenya Films and Stage Plays Act (CAP 222) and how the Kenya Film and Classification Board (KFCB) has applied the law to impose unwarranted restrictions on free expression.
Background of CAP 222
CAP 222 was enacted on November 22, 1962 and entered into force on October 1, 1963. CAP 222 is an anachronistic colonial relic that is drastically out of step with modern human rights standards as enshrined in international law and Kenya’s Bill of Rights. CAP 222 is particularly typified by its historically-rooted ability to censor and violate Kenyans’ fundamental right to freedom of expression, rather than to respect, protect, and promote the right.
The 2020 Statute Law (Miscellaneous Amendment) Bill, which was tabled before Parliament by Hon. Aden Duale, was one attempt to amend CAP 222, although this was withdrawn because, at the time, the ICT Ministry was in the process of developing the National Film Policy. Concerningly, the proposals sought to expand the definition of ‘film’ which would bring all recordings of any visual images capable of being seen as “moving pictures'' that are distributed, broadcast, or exhibited within the ambit of regulation by the KFCB. This means that videos captured on mobile phones and posted on personal social media accounts would have been open to scrutiny by the KFCB.
Application of CAP 222
A few examples, listed below, provide insight into how the law has been applied by the KFCB:
In January 2014, the KFCB banned the movie The Wolf of Wall Street for “extreme scenes of nudity, sex, debauchery, hedonism and cursing.” Relatedly, in October 2014, following the release of Kenyan film Stories of Our Lives, depicting Kenya's LGBT community, the KFCB barred the film for “obscenity, explicit scenes of sexual activities, and [for promoting] homosexuality, which is contrary to [Kenya's] national norms and values.”
In December 2015, KFCB banned beer and contraceptive advertisements from airing during the “watershed period” between 5 a.m. to 10 p.m., unless granted explicit approval from the board. The ban was extended to “advertisements and commercials that feature sexual innuendos and sexually suggestive scenes,” as well as those that “glamorise lifestyles and behaviours such as homosexuality, promiscuity, and juvenile delinquency.” The KFCB used this rationale to ban a Coca-Cola advertisement containing a passionate kissing scene on the grounds that it “violated family values.”
In January 2016, the KFCB termed the advent of Netflix into Kenya a “threat to national security” and a “threat to Kenyan moral values.”
In June 2017, the KCFB ordered a ban on six cartoons airing on Cartoon Network Africa, Nickelodeon Africa, and Nicktoons Africa for allegedly promoting LGBT themes to minors.
In April 2018, the KFCB banned a film Rafiki due to alleged homosexual themes depicted in its content. The ban was criticized for stifling Kenyans' creativity. This is the first Kenyan film to be selected to air at the Cannes Film Festival.
This record demonstrates fundamental flaws in the content and application of the Act. First, limitations on free speech under Articles 24 and 33 of the Kenya Constitution do not include grounds such as “indecency,” “immorality,” and “obscenity.” The KFCB’s reliance on these terms to restrict free speech therefore has no constitutional backing. Second, the “freedom of artistic creativity” that Article 33 (1)(b) of the Constitution explicitly protects does not allow another person’s insight to be factored into the production of an artist's piece. Hence, the artist is not obligated to expunge words or scenes that another may consider “gross,” “indecent,” or “obscene.”
The UN Special Rapporteur in the field of cultural rights recommended three key approaches to safeguard the freedom of artistic creativity in her 2013 report: first, that “States should abolish prior-censorship bodies or systems where they exist and use subsequent imposition of liability… and exclusively by courts of law”; second, prior censorship should be used only to prevent the imminent threat of grave, irreparable harm to human life or property; and third, that “classification bodies or procedures may be resorted to for the sole purpose of informing parents and regulating unsupervised access by children to particular content, and only in the areas of artistic creation where this is strictly necessary due in particular to easy access by children.”
The upshot? The KFCB and CAP 222 operate in contravention of international and national law, with the legitimacy of the KFCB itself being called into question. The same could be said of its CEO, Ezekiel Mutua, whose conduct within this context is wholly objectionable as a serial violator of the Constitution. Mutua’s mission statement on his official Twitter account reads, “To protect children from harmful content.” However, the terms “harmful content” and “dirty content” do not appear once in the text of CAP 222, raising questions and concerns about from where Mutua derived this mandate.
Were he a state officer, Mutua would be, ipso facto, totally unfit to hold public office under Chapter 6 of the Constitution. He has violated his authority, by failing to act according to, and in line with, the Constitution; he has failed to promote public confidence in the integrity of the KFCB; and he has abused his powers. Mutua has also not been accountable to the public for the KFCB’s decisions and actions. For example, the statement which the Board issued explaining the arrest of Eric Omondi made a mockery of the high standards of objective accountability demanded by the public.
Under Article 10, Mutua has violated the Constitution by serially behaving in a manner that egregiously undermines Kenya’s national values and principles of governance which include, among others, the rule of law, participation of the people, human dignity, inclusiveness, equality, human rights, non-discrimination, protection of marginalized groups, integrity, transparency, and accountability.
Political figures often forget that power is short-lived, and that the instruments of oppression they use against citizens can eventually be turned against them. Achieng Oneko, a former Kapenguria Six political detainee alongside Jomo Kenyatta, and others, including the then-Minister for Information and Broadcasting in the Jomo Kenyatta government, once remonstrated with journalist Alistair Matheson and stated, “Matheson, you must never forget we never closed the detention camps after independence.” Paradoxically, Oneko would be one of the people that former President Moi released from political detention on assumption of office in 1978.
More recently, Moses Kuria and Ndindi Nyoro in 2017 called on the police to use force to quell opposition-supporting protests, despite the fact that all evidence pointed to the police brazenly engaging in egregious violations of human rights against this group. Today, cast off from the “safe” moorings of the harbor of the Jubilee Party, we hear the same politicians loudly lamenting that the police have “gone rogue” and are illegitimately and illegally harassing them. Which is of course true, but look at what happens once the shoe is worn on the other foot.
To condone or enable the violation of fundamental human rights in the name of political convenience or expediency, or simply because it accords with our views about a certain group of people or certain practice, is truly perilous. As the American Civil Liberties Union has noted, “[l]ike a poisonous gas, once the wind shifts, the gas will waft towards your direction and harm you as well.”
Authors
All three authors work with ARTICLE 19 Eastern Africa. Kiai is the Regional Director; Gakii is a Program Officer, Civic Space; Mwanzia is a Program Officer, Digital.