Artistic Expression, Indecency / Obscenity
Barnes v. Glen Theatre, Inc.
Closed Expands Expression
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The High Court of Kenya at Nairobi overturned the ban imposed by the Kenya Film Classification Board (the Board) on filmmaker Wanuri Kahiu’s film ‘Rafiki’. The film covered issues related to homosexuality (which is prohibited in Kenya), and Kahiu had sought a conservatory order to lift the ban to allow its distribution in Kenya, a requirement for her to submit the film for consideration by the Oscar Selection Committee. The Board and the Kenyan Attorney General had argued that the distribution of the film would morally corrupt the citizens of Kenya. The Court held that not lifting the ban would cause irreparable harm to Kahiu, and held that allowing distribution of the film for viewing by “willing adults” would not threaten the moral values of Kenyans.
On April 10, 2018 Wanuri Kahiu, a Kenyan film-maker, submitted the script of her film Rafiki to the Kenyan Film Classification Board (the Board) for examination and rating. The film covered issues related to homosexuality which is prohibited in Kenya. After assessing the film, the Board ordered Kahiu to edit the film to remove the elements that they had deemed offensive. In response, Kahiu requested the Board to classify the film and on April 26, 2018 the Board issued its decision to “restrict/ban the film from being exhibited anywhere within the Republic of Kenya” (para. 6). In its letter to Kahiu the Board stated that the “film contains objectionable classifiable elements such as homosexual practices that run counter to the laws and culture of Kenyan people” and that “the moral of the story in this film is to legitimize lesbianism in Kenya contrary to the laws and the Board‘s content classification guidelines” (para. 58).
On August 14, 2018 Kahiu received an email which informed her that because of the April decision to ban the film, Rafiki had not met the requirement that a film be shown in Kenya for at least seven days in order to be eligible for consideration for entry into the Best Foreign Language Film category by the Oscars Selection Committee (para. 10). The deadline for submission to the Oscars Selection Committee was September 30, 2018.
On September 11, 2018 Kahiu and the Creative Economy Working Group – a “consortium of civil society organizations and institutions whose objective is to campaign for the advancement of legislative and policy reforms in the creative sector for the advancement of culture, arts and media in Kenya” (para. 2) – brought an application before the High Court in Nairobi. Kahiu sought conservatory orders staying the Board’s decision to ban and restrict the film and to allow her to submit the film to the Oscars Selection Committee Kenya for consideration. Kahiu brought the case against the CEO of the Board, Ezekiel Mutua, the Board and the Attorney General.
Article 19 East Africa and the Kenya Christian Professionals Forum were admitted as interested parties to the litigation.
Judge Okwany delivered the judgment of the High Court. The central issue before the Court was whether to order the temporary lift of the ban of the film. Okwany explained that the obligation on a court hearing an application for a conservatory order is not to make “any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition” (para. 47): all that the court must determine is that the applicant has demonstrated that he or she has a prima facie case and would suffer irreparable harm if the order were not granted.
Kahiu argued that the film’s ban constituted a limitation of her freedom of expression and artistic creativity, protected by article 33 of the Constitution. She argued that she was entitled to the conservatory order because she would suffer the irreparable harm of not being able to submit the film for Oscars consideration if the order was not granted. In addition, Kahiu submitted that the blanket ban of the film was not in the public interest – particularly since it was rated “16” in South Africa and had been featured in international film festivals (para. 16). She also argued that the Films and Stage Plays Act Cap 222 (the Act) did not provide for blanket bans of films (para. 17). Kahiu argued that the Board was failing to uphold its constitutional obligations to “protect, respect, promote and fulfill freedom of expression” by banning the film (para. 17).
Article 19 East Africa argued that the Act provided the Board with the option of classifying the film as “adults only” instead of imposing the blanket ban. It submitted that the right to freedom of expression protects the right to express ideas which may be considered subversive so as to contribute to a public debate about those issues. Article 19 emphasized the link between freedom of expression and democracy and argued that democracy can only flourish if artistic creativity is encouraged (para. 19). In addition, Article 19 argued that homosexuals are a minority in Kenya and so the Court should be guided by article 10 of the Constitution which requires protection of marginalized communities (para. 20).
The Attorney General argued that allowing the conservatory order would amount to allowing the distribution of the film without being subjected to the checks and balances provided for in the Act (para. 23). He added that Kahiu’s argument that she would suffer irreparable harm did not acknowledge that “an Oscar nomination is not a matter of life or death” and that a court must take into account the interest of all other Kenyans when determining whether the film should be distributed (para. 26).
The CEO of the Board, Mutua, argued that the rights to freedom of expression under article 33 are not absolute and can be limited in accordance with the general limitation clause in Kenya’s Constitution under article 24.
The Kenya Christian Professionals Forum argued that the irreparable harm that should be considered is the impact on the Kenyan population were the film to be shown, given that Kenya does not permit homosexuality (para. 35).
Okwany held that Kahiu’s case was not “so frivolous that it can be terminated at this state” (para. 54) and then analyzed the arguments put forward by the parties as to whether the distribution of the film would cause irreparable harm to Kahiu or to the general Kenyan population. The Judge recognized that the time window for submission of the film for Oscars consideration meant that “time was of the essence” to Kahiu (para. 56). Okwany noted that the “it is clear to this court that the reason for the ban on the film was because of its gay theme” but explicitly stated that it was not required to determine the legitimacy or morality of homosexuality (para. 60). The Judge held that this case concerned whether “an artist or a filmmaker can, in exercising his or her right to freedom of expression and artistic creativity, make a film depicting gay theme” (para. 60). Okwany held that “one of the reasons for artistic creativity is to stir the society‘s conscience even on very vexing topics such as homosexuality” (para. 61).
Okwany discussed the history of banning art works in Kenya and, with reference to the 2013 Kenyan case of Okoiti v. Attorney General  eKLR, noted that he was “not convinced that Kenya is such a weak society whose moral foundation will be shaken by simply watching a film depicting gay theme” (para. 61). The Judge also stated that “the importance of the rights and freedom of expression in a democratic state such as ours cannot be gainsaid or taken for granted” and that it is imperative for a Court to scrutinize conduct which threatens these rights and freedoms (para. 62)
Okwany recognized that a team of examiners assigned by the Board had initially rated the film suitable for adult viewing before banning it (para. 59), and that lifting the ban for seven days to allow viewing to adults only “would suffice for the Oscar nominations” (para. 63). The Judge balanced Kahiu’s rights to freedom of expression and the harm she would suffer without distribution of the film with the perceived risk to the public’s moral values and noted that the public was under no obligation to view the film.
Accordingly, Okwany held that Kahiu had made the case for a conservatory order, and ordered the stay of the film’s ban for a period of seven days from the day of judgment. The order stipulated that the film be accessible only by willing adults and that Kahiu be allowed to submit the film for Oscars consideration (para. 64).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment expands expression by overturning a blanket ban of a controversial film in Kenya, which enabled Kenyans to view the locally-made film which had been accessible in many other countries. The High Court emphasized the role artistic creativity can play in stimulating debates on controversial topics within societies, and highlighted that the distribution of a film does not threaten a society’s moral values because no individual is forced to watch the film.
Case significance refers to how influential the case is and how its significance changes over time.
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