Kenyan director Wanuri Kahiu poses on May 9, 2018 during a photocall for the film “Rafiki” during the 71st edition of the Cannes Film Festival in Cannes, southern France. PHOTO| AFP
When filmmaker Wanuri Kahiu first submitted the original script of her same-sex-themed film ‘Rafiki’ to the then CEO of the Kenya Film Classification Board (KFCB), Ezekiel Mutua, the script was reviewed, and a license was granted.
What was to follow would turn ‘Rafiki’ from a coming-of-age love story of two young women, Ziki portrayed by Sheila Munyiva and Kena, portrayed by Samantha Mugatsia, who fall in love despite societal pressures and homophobia, into one of Kenya’s most contested films.
On April 16, 2018, just six days after submitting the completed film for examination and rating, Wanuri met the Board, where she was informed certain scenes were deemed “offensive, classifiable elements” and needed to be edited out before the film could be approved.
Wanuri refused.
Instead, she asked the Board to do what it was mandated to do: classify the film for the appropriate audience, not censor it. Ten days later, on April 26, 2018, she got her response via a letter that stated ‘Rafiki’ had been classified as ‘restricted’ with a detailed explanation of the decision.
The Board noted that the film contained depictions of homosexuality, arguing that the content ran afoul of Kenyan law and cultural values.
The letter went further, warning against the film’s exhibition or distribution anywhere in Kenya. KFCB framed its decision as part of its core mandate in promoting Kenyan culture and protecting children from exposure to what it deemed harmful content.
Kenyan actress Samantha Mugatsia, Kenyan director Wanuri Kahiu and Kenyan actress Sheila Munyiva pose as they arrive on May 9, 2018 for the screening of the film "Rafiki" at the 71st edition of the Cannes Film Festival in Cannes, southern France.
For Wanuri, that was the line in the sand. The explanation didn’t make any sense. If that is the case, why has the Board never banned films that portray crime, which is equally unlawful under the laws of the land?
She argued at the Court of Appeal, with the High Court having sided with the KFCB decision.
Why High Court backed Rafiki ban
When the KFCB decision didn’t make any sense to Wanuri, she first moved to the Constitutional High Court, arguing that the restriction placed on ‘Rafiki’ infringed on her freedom of expression and artistic creativity protected by the Constitution.
Wanuri also challenged the KFCB Classification Guidelines (2012) and sections of the Films, Stage and Plays Act, arguing that both were unconstitutional and asked the court to strike them down. She argued that the guidelines had not been gazetted, hence they were unlawful.
She also sought to be compensated Sh8.5 million, with Sh7.5 million in projected theatrical sales losses and an additional Sh1 million for lost sponsorship, losses she blamed on the ban.
But when Justice Onesmus Makau delivered his judgment on April 20, 2020, the court was not persuaded.
The judge ruled that Wanuri had failed to show that Mutua or the Board had acted outside their statutory powers, in bad faith, or with malice. On the contrary, the court noted that KFCB had repeatedly engaged her in discussions, gave her a chance to be heard, and ultimately provided written reasons for its decision.
On the broader constitutional question, Judge Makau stated that freedom of expression is not absolute. While the Constitution protects artistic freedom, it also allows for limitations both explicit and implied, so long as they align with constitutional principles. In the court’s view, KFCB acted within those limits. In that regard, the High Court upheld both the Films Act and the Classification Guidelines as valid and constitutional, and that both Mutua and the board acted accordingly in banning the film.
Former Kenya Film Classification Board (KFCB) CEO Ezekiel Mutua.
What the Court of Appeal Judges said
Undeterred, Wanuri escalated the matter to the Court of Appeal, this time bolstering her legal firepower by appointing former Attorney-General Prof. Githu Muigai as lead counsel.
The case landed before a three-judge bench of Justices Wanjiru Karanja, Lydia Achode, and Francis Tuiyott.
The appeal was the familiar argument that the ban on ‘Rafiki’ was unconstitutional and fell outside the permissible limitations on freedom of expression under Article 33(2). She maintained that KFCB’s powers extended only to classification, not outright bans, except where content was unsuitable for children, maintaining that the board ought to have classified her film, not banned it.
Wanuri pointed out what she saw as glaring inconsistencies.
She argued that KFCB had classified numerous films depicting far more explicit content. ‘Rafiki’ itself had been screened internationally, such as at the Cannes Film Festival, becoming the first Kenyan film to achieve that fete and was also rated for general audiences in France, for children aged nine and above under parental guidance in Scandinavia, for viewers over 12 in Switzerland and Germany, and at 16+ in South Africa.
She maintained that if films portraying crimes like forgery are not banned simply because forgery is illegal, why should a film depicting same-sex relationships be treated differently?
Wanuri also faulted the High Court for declining to assess damages, arguing that the court had misdirected itself in law and abused its discretion on costs.
In their judgment, the Court of Appeal judges zeroed in on what they described as Wanuri’s “change of heart.”
Kenyan Film Director Wanuri Kahiu. Ms Kahiu makes her debut on the Hollywood scene with her first Netflix film, Look Both Ways.
At the High Court, she had argued that any limitation on freedom of expression beyond Article 33(2) was unconstitutional. On appeal, she appeared to concede that limitations could exist so long as they complied with Article 24, which outlines when rights may be limited.
The bench reaffirmed that freedom of expression, while robustly protected, is not among Kenya’s non-derogable rights. It can be limited by law, provided such limitation is reasonable, justifiable, and constitutionally grounded.
“We, therefore, uphold the holding of the High Court that the right to freedom of expression is not absolute, as it is evident that it is not included in the illimitable rights and fundamental freedoms provided in the Constitution,” noted the bench.
The judges also rejected the argument that KFCB could classify films but lacked the power to ban them. To do so, they said, would be logically inconsistent.
“To be gleaned from the tone of the arguments taken up before us by the appellant is a change of heart regarding a position she held before the trial court,” noted the bench.
If the Board’s power to classify, which includes censorship, is constitutional, then banning a film, where warranted, cannot automatically be disproportionate. One cannot accept the Board’s mandate with one hand and deny its logical consequences with the other, the bench observed.
“We understand her to have climbed down from that position to the acknowledgement that there could be limits to the freedom of expression outside those in Sub-Article 2, as long as they accord with Article 24 of the Constitution,” the judges noted.
On the issue of the ungazetted guidelines, the Court agreed with Justice Makau that nullifying them would paralyse the Board’s ability to regulate content touching on public order, decency, and public interest.
“Needless to say, since the argument does not fault the broad functions of the Board, the appellant (Kahiu) and 1st respondent (Creative Economy Working Group) would be speaking from both sides of their mouth to contend that the Board can only rate films for exhibitions and not ban them.”
Whereas the judges acknowledged a legal reality that homosexuality remains criminalised under Kenya’s current legal framework, they were equally alive to the fact that gayism, lesbianism, and bisexual people are realities. Hence, the bench noted that outright banning a film that merely depicts a homosexual lifestyle without promoting or endorsing it is disproportionate.
“Just like we live in a country in which the use of banned narcotic substances is real. So, while the guidelines rate films that depict drugs as ‘adults only’, they ban those that promote or endorse drug abuse. Drawing from this illustration, we come to the conclusion that outrightly banning a film that only depicts a homosexual lifestyle without promoting or glamourising it is a disproportionate limitation on the right of freedom of expression. The reason that the Board gave for banning public exhibition of “Rafiki” is that it contained objectionable elements of homosexual practices and legitimises lesbianism. While the latter test would be a legitimate constitutional limitation, the former could have been a reason to rate it as an ‘adults only’ and not to ban it.”
In their words, ‘Rafiki’ could reasonably have been classified as ‘adults only’ rather than banned entirely.
Still, the bench stopped short of making a final determination on the film’s fate, opting instead to preserve the multi-layered review process under the Films Act.
“A film that merely depicts a homosexual lifestyle is an approvable subject to the rating set out in the Film Act. What orders should we make? We have agonised over this question. The two provisions of the Act which we have held to be unconstitutional are not relevant in reviewing whether or not the ban on “Rafiki” by the Board was a correct decision. Insofar as we have upheld the decision of the High Court that the legal framework set out in the Act for restricting (including censorship) and rating films is constitutional, then the appellant should now exhaust the appeal mechanism available under the Act.”
On Wanuri’s plea for compensation and losses, she incurred from the banning of ‘Rafiki’, the court declined to award any damages, stating that the party best placed to argue the issue didn't do so.
The Creative Economy Working Group, joined as an interested party, failed to properly advance the claim, and Wanuri herself chose not to pursue the issue forcefully on appeal.
“We decline to make any decision on the question of damages raised in the cross-appeal. This is because the appellant (Kahiu), who would have been the party entitled to that prayer, chose not to press the matter in this appeal.”
The superior court has now allowed Wanuri to appeal the KFCB decision to ban ‘Rafiki’ under the provisions of section 29 of the Film and Stage Plays Act within 30 days of the issuance of its judgment.
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