Case Summary and Outcome

The Court of Appeal of Kenya at Nairobi held that the High Court of Kenya had erred in finding that its jurisdiction had been prematurely invoked, and it clarified that constitutional challenges to legislation and administrative decisions could properly be brought before the High Court even where a statutory appeal mechanism existed. The case arose after filmmaker Wanuri Kahiu submitted her film Rafiki to the Kenya Film Classification Board for classification, but the Board restricted the film’s exhibition on April 26, 2018, on the grounds that it depicted homosexuality and was inconsistent with Kenyan law and cultural values. Kahiu and the Creative Economy Working Group subsequently filed a constitutional petition challenging the restriction and the constitutionality of several provisions of the Film and Stage Plays Act (Kenya). The High Court dismissed the petition after holding that the statutory appeal procedure had not been exhausted. On appeal, the Court reasoned that the earlier interlocutory ruling of Justice Grace Okwany had already affirmed the High Court’s jurisdiction and therefore the High Court’s contrary finding violated the doctrine of res judicata. The Court further held that although freedom of expression under Article 33 of the Kenyan Constitution was not absolute and could be limited under Article 24, the statutory appeal mechanism under the Act was inadequate to determine constitutional questions, and therefore the petition could properly be heard by the High Court while most provisions of the regulatory framework governing film classification remained constitutionally valid.

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Facts

Wanuri Kahiu, the appellant, was an internationally acclaimed Kenyan-born filmmaker and the producer and director of the film Rafiki. Kahiu submitted the original script of the film Rafiki to the Chief Executive Officer of the Kenya Film Classification Board and applied for a filming licence pursuant to sections 4 and 5 of the Film and Stage Plays Act (Kenya). Upon review of the script, the licensing authority granted Kahiu a filming licence permitting the production of the film. After revising the script in accordance with statutory requirements, Kahiu obtained an endorsement on the licence under section 7 of the Act, allowing the film to proceed to production.

On April 10, 2018, Kahiu submitted the completed film Rafiki to the Kenya Film Classification Board for examination and rating before distribution and exhibition. On April 16, 2018, Kahiu attended a meeting with officials of the Board during which the Board directed her to edit the film and remove certain scenes that it described as containing “offensive classifiable elements.” The Board required that the edits be completed and the film resubmitted for classification by April 18, 2018. Kahiu declined to make the requested edits after consulting with her legal counsel and instead requested the Board to proceed with the classification of the film in its original form.

By a letter dated April 26, 2018, the Board informed Kahiu that the film had been classified as “Restricted.” The Board stated that the film contained elements depicting homosexuality and lesbian relationships, which it considered inconsistent with Kenyan law and the cultural values of the Kenyan people. The letter further warned that the exhibition, distribution, or broadcast of the film anywhere within the Republic of Kenya would not be permitted. The Board stated that its decision was made pursuant to its statutory mandate to regulate films and to protect children and the public from exposure to “harmful content.” Following the decision, the Chief Executive Officer of the Board publicly reiterated the Board’s position regarding the film.

In response to the restriction, Kahiu, together with the Creative Economy Working Group, filed a constitutional petition before the High Court of Kenya, Constitutional and Human Rights Division, in Nairobi. The petition challenged the actions of the Board and its Chief Executive Officer, as well as several provisions of the Film and Stage Plays Act and the Kenya Film Classification Board Classification Guidelines from 2012. Kahiu contended that the provisions of the Act, the Guidelines, and the decision to ban the film violated several constitutional protections, including the right to freedom of expression and artistic creativity under Article 33, the freedom of the media under Article 34, the right of access to information under Article 35, and the principle of legality under the Constitution of Kenya. She argued that the Act created a system of administrative prior classification of films, which effectively transferred control over expression from the creator to an administrative body and therefore constituted a form of censorship incompatible with constitutional guarantees. She further contended that the restriction imposed on the film did not have a proximate relation to the permissible grounds for limiting freedom of expression set out in Article 33(2) of the Constitution. 

Kahiu also relied on international and comparative jurisprudence in support of her claims. She referred to Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 9 of the African Charter on Human and Peoples’ Rights (Charter), both of which protect the right to freedom of expression and have been incorporated into Kenyan law through Article 2(6) of the Constitution. She argued that the general limitations clause under Article 24 of the Constitution required the State to demonstrate that any restriction on a constitutional right was prescribed by law, pursued a legitimate aim, and was necessary and proportionate in a democratic society. Kahiu maintained that the Board’s stated objective of protecting children from harmful content could have been achieved through less restrictive measures, such as imposing an age restriction on the film rather than banning its exhibition entirely. 

Kahiu and other petitioners further challenged the legality and constitutional validity of several provisions of the Film and Stage Plays Act, including sections 4, 6, 7, 8, 9, 12, 13, 16, 30, and 35. They argued that certain provisions created strict liability criminal offences without requiring proof of mens rea and were therefore vague, arbitrary, and inconsistent with constitutional standards. They also argued that the Kenya Film Classification Board Classification Guidelines lacked the force of law because they had not been properly enacted as statutory instruments and were broader than necessary to achieve any legitimate regulatory objective. 

Chief Executive Officer of the Kenya Film Classification Board, Ezekiel Mutua, and the Board itself, opposed the petition and argued that the decision to restrict the film had been made within the scope of the Act and the Guidelines. They submitted that the Board had acted in accordance with its statutory mandate and had not acted in bad faith, with ill will, or with malice. They further contended that the list of limitations set out in Article 33(2) of the Constitution was not exhaustive and that constitutional provisions should be interpreted holistically. They argued that Article 33 should be read together with Articles 53 and 55 of the Constitution, which require the State to protect children and young people from harmful cultural practices and exploitation. They also relied on international obligations, including those arising under the Convention on the Rights of the Child (CRC), which require the State to prioritize the best interests of children. 

The Attorney General of Kenya also defended the constitutionality of the Act and submitted that the legislation sought to protect consumers and vulnerable members of society from harmful media content. The Attorney General argued that the Board had acted lawfully and within its mandate to restrict the exhibition of the film because its content was considered inconsistent with the cultural and moral values of the Kenyan people.

Other parties participated in the proceedings as interested parties, including Article 19 East Africa, the Kenya Christian Professionals Forum, and the Kenya National Commission on Human Rights. These parties presented differing positions on the constitutionality of the Act and the Board’s decision. Some argued that the legislation was vague and overbroad, and others maintained that the limitations imposed on freedom of expression were reasonable and justified. 

On April 29, 2020, the High Court delivered its judgment. The High Court first held that its jurisdiction had been prematurely invoked since Kahiu and other petitioners did not utilize the statutory appeal mechanism provided under Section 29 of the Film and Stage Plays Act. Nevertheless, the High Court proceeded to consider the substantive constitutional questions raised in the petition. This court held that the right to freedom of expression under Article 33 of the Constitution was not absolute and could be limited in accordance with Article 24, where such limitations were reasonable and justifiable in a democratic society. The High Court concluded that the provisions of the Act and the Classification Guidelines pursued legitimate objectives, including the protection of the public and children from harmful audiovisual content. Although the court observed that the Classification Guidelines had not been published in the Kenya Gazette as required by law, it held that they served an important regulatory function and granted the Board one year to regularize them in accordance with the applicable statutory framework. Ultimately, the court dismissed the petition and upheld the constitutionality of the Act, the Guidelines, and the Board’s decision to restrict the exhibition of the film Rafiki. 

Dissatisfied with the High Court’s decision, Kahiu filed an appeal before the Court of Appeal of Kenya, challenging the findings of the trial court, including its determination that the court’s jurisdiction had been prematurely invoked and its conclusion that the restriction of the film was a constitutionally permissible limitation of the right to freedom of expression. 

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Decision Overview

Justice W. Karanja, Justice F. Tuiyott, and Justice L. Achode delivered the decision for the Court of Appeal of Kenya at Nairobi. The primary issues before the Court were whether the High Court erred in holding that its jurisdiction had been prematurely invoked due to Wanuri Kahiu’s failure to exhaust the statutory appeal mechanism under the Film and Stage Plays Act (Kenya), and whether the decision of the Kenya Film Classification Board to ban the film Rafiki constituted an unconstitutional limitation of the appellant’s right to freedom of expression under Article 33 of the Constitution. 

Kahiu contended that the High Court erred in concluding that its jurisdiction had been prematurely invoked. She argued that the court had failed to properly consider the scope of its constitutional jurisdiction under articles 165(3), 23(1), and 165(6) of the Constitution of Kenya (2010). According to Kahiu, these provisions empowered the High Court to determine questions concerning the violation or threatened violation of rights in the Bill of Rights and to assess whether actions taken under the authority of law were inconsistent with the Constitution. She maintained that the Kenya Film Classification Board and its Chief Executive Officer exercised quasi-judicial powers when determining whether films could be exhibited and that the High Court therefore possessed supervisory jurisdiction over their decisions. Kahiu emphasized that her petition sought constitutional review of the Board’s actions as well as a determination of the constitutionality of several provisions of the Film and Stage Plays Act (Kenya) and related classification regulations. She argued that the High Court had improperly declined jurisdiction on the basis that she had not first exhausted the statutory appeal mechanism under Section 29 of the Act.

Kahiu further argued that requiring her to pursue the statutory appeal process before raising constitutional issues would have created an impractical and legally flawed precedent. She maintained that the appeal mechanism provided under Section 29 of the Act, which involved appealing to the relevant minister, was not capable of resolving constitutional questions concerning the validity of legislation or administrative action. In her view, the minister lacked the authority to interpret the Constitution or determine the constitutionality of statutory provisions. She therefore asserted that the High Court was the appropriate forum for determining whether the Board’s decision to ban the film Rafiki violated the constitutional guarantee of freedom of expression under Article 33 of the Constitution and whether the statutory provisions empowering that decision were themselves unconstitutional. Relying on precedent, she argued that even where statutory remedies existed, courts could properly entertain constitutional claims where the alternative mechanism was inadequate to address the substantive issues raised. 

The Creative Economy Working Group contended that the issue of jurisdiction had already been conclusively determined earlier in the proceedings and was therefore res judicata. It argued that in a ruling delivered on September 21, 2018, Justice Grace Okwany of the High Court of Kenya concluded that the court possessed broad jurisdiction to hear the petition because it raised allegations concerning the violation or threatened violation of constitutional rights. Because that ruling had not been appealed, the Creative Economy Working Group maintained that Justice James Makau could not later reconsider the same issue when delivering the final judgment. Thus, it asserted that the High Court’s subsequent finding that its jurisdiction had been prematurely invoked was erroneous since the matter had already been settled within the same proceedings.

The Chief Executive Officer of the Kenya Film Classification Board, Ezekiel Mutua, together with the Board, argued that although the High Court characterized the petition as premature under the doctrine of exhaustion, that finding did not necessarily deprive the court of jurisdiction to determine the matter. They emphasized that the issue had been primarily raised by the Kenya Christian Professionals Forum, an interested party, and relied on the decision in Methodist Church in Kenya v. Fugicha & Others to argue that interested parties should ordinarily confine themselves to issues raised by the principal parties. They further submitted that the petition fell within recognized exceptions to the exhaustion doctrine because the statutory appeal mechanism under Section 29 of the Film and Stage Plays Act (Kenya) was not capable of determining the central constitutional questions raised in the petition. In contrast, the Attorney General of Kenya and the Kenya Christian Professionals Forum supported the High Court’s reasoning and maintained that the doctrine of exhaustion required litigants to pursue the statutory appeal process before approaching the courts. They argued that the Act provided an adequate mechanism for challenging film licensing and classification decisions and that Wanuri Kahiu failed to demonstrate exceptional circumstances justifying bypassing that statutory process. 

The Court of Appeal of Kenya first considered whether the High Court of Kenya had erred in concluding that its jurisdiction had been prematurely invoked due to the failure to exhaust the statutory appeal mechanism under Section 29 of the Film and Stage Plays Act (Kenya). The Court examined whether the issue of jurisdiction had already been determined earlier in the proceedings by Justice Grace Okwany during the interlocutory stage. It held that the earlier ruling had conclusively determined that the High Court possessed jurisdiction to hear the petition, and therefore, the trial judge could not revisit the matter in the final judgment. The Court emphasized that since there was no change in facts or circumstances, reconsidering the issue would violate the doctrine of res judicata. Consequently, it concluded that the trial court erred in holding that its jurisdiction had been prematurely invoked.

The Court further addressed whether an interested party could raise the issue of jurisdiction when the principal parties had not done so. It held that jurisdiction was a fundamental question that went to the authority of a court to hear a dispute, and therefore it could be raised by any party or even by the court on its own motion. The Court reasoned that when an interested party alerted the court to a potential lack of jurisdiction, it was not introducing a new issue but merely cautioning the court about the limits of its authority. Accordingly, the Court rejected the argument that the objection raised by the interested party improperly expanded the scope of the proceedings.

The Court then examined the doctrine of exhaustion and the availability of alternative remedies. While referring to Nicholus v. Attorney General & 7 Others, the Court held that the existence of an alternative statutory remedy did not automatically bar a litigant from seeking constitutional relief before a court. The Court observed that the availability of such remedies must be assessed in light of their adequacy and their ability to address the specific grievance raised. In this regard, the Court also referred to United Bank of India v. Satyawati Tondon, where the Supreme Court of India emphasized that although courts should exercise restraint where alternative remedies exist, the rule of exhaustion is ultimately discretionary rather than mandatory. Applying this reasoning, the Court concluded that the statutory appeal mechanism under Section 29 of the Act was inadequate to determine the constitutionality of legislation and therefore could not bar the petition before the High Court.

Turning to the substantive constitutional questions, the Court examined whether the impugned provisions of the Film and Stage Plays Act and the Kenya Film Classification Board Guidelines violated the constitutional guarantee of freedom of expression under Article 33 of the Constitution. The Court noted that freedom of expression was not absolute and could be limited in accordance with Article 24 of the Constitution. It observed that Article 33(2) imposed certain internal limitations on expression but did not exhaustively define all permissible restrictions. The Court therefore upheld the trial court’s interpretation that additional limitations could be imposed so long as they satisfied the constitutional test of reasonableness and justification. The Court stated that “the right to freedom of expression is not absolute” and that “other limitations could be imposed on the right to freedom of expression, but only insofar as this will be in accordance with the provisions of the constitution.” [para. 41]

Upon determining whether the statutory limitations were constitutionally permissible, the Court applied the proportionality framework contained in Article 24 of the Constitution. The Court, referring to S v. Manamela and Another (Director-General of Justice Intervening), held that the assessment of limitations on rights required a balancing exercise in which courts evaluated whether a restriction was reasonable and justifiable in an open and democratic society. The Court also relied on the Canadian Supreme Court decision in R v. Oakes, which established a proportionality test requiring that a limitation pursue a sufficiently important objective and that the means adopted be rationally connected to that objective, impair the right as little as possible, and maintain proportionality between the objective and the effects of the limitation.

Applying these principles, the Court analyzed several provisions of the Film and Stage Plays Act that were challenged as unconstitutional. It rejected the argument that Section 4 of the Act created a strict liability offense that criminalized filmmaking without a license. While referring to Sweet v. Parsley, the Court held that the absence of explicit language referring to intent did not necessarily exclude the requirement of mens rea and therefore did not render the provision unconstitutional. The Court further held that Section 6, which granted discretion to the licensing officer to issue or refuse filming licenses, was not unconstitutional because such discretion was expected to be exercised in accordance with the Constitution and could be challenged through the statutory appeal process.

The Court also considered the provisions relating to the examination and approval of films for public exhibition. It held that the statutory framework allowing the Kenya Film Classification Board to examine films, impose restrictions, or refuse approval served the legitimate objective of regulating the film industry and protecting the public from harmful audiovisual content. The Court observed that the regulatory scheme was comparable to systems used in other democratic jurisdictions and that the objective of controlling the making and exhibition of films was not inherently unconstitutional. However, the Court considered that the use of force under Section 9 of the Act to halt the filming of a scene was constitutionally justifiable only in limited circumstances where the safety of persons or property was endangered or where animals were subjected to cruelty.

In conclusion, the Court held that the constitutional petition raised genuine issues that could not have been effectively addressed through the statutory appeal mechanism provided under the Act. Hence, it concluded that the High Court erred in holding that its jurisdiction had been prematurely invoked. At the same time, the Court largely upheld the regulatory framework governing film classification and censorship, arguing that most of the challenged provisions of the Film and Stage Plays Act were constitutionally valid as reasonable limitations on freedom of expression within the meaning of Article 24 of the Constitution.

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