Artistic Expression, Content Regulation / Censorship
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The High Court of Kenya in Nairobi confirmed 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.The filmmaker initially sought a conservatory order to lift the ban to allow the film’s distribution in order to meet the requirement for the film to be considered by the Oscar Selection Committee. The High Court granted an interim conservatory order and allowed the film to be shown for seven days, available only to consenting adults. However, when the final determination on the merits was made, the ban was upheld and the Court held that the Board’s actions in limiting the filmmaker’s freedom of expression were constitutional as they sought to protect the Kenyan public’s moral values.
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 simply classify the film without any amendment 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 of the first judgment]. 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 of the first judgment].
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 of the first judgment]. 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 of the first judgment] – 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. She argued that the ban on the film was an infringement of her right to freedom of expression, protected by article 33 of the Constitution.
Article 33(1) of the Constitution states: “Every person has the right to freedom of expression which includes – (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research”. Article 33(2) sets out specific forms of expression that are not protected by the provision, and states that the right “does not extend to – (a) propaganda for war; (b) incitement to violence; (c) hate speech; and advocacy of hatred – that (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27(4)”.
The Board and the Attorney General argued that the limitation of the right was reasonable and justifiable in terms of the general limitations clause in article 24 of the Constitution. Article 24 states: “(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation, (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms does not prejudice the rights and fundamental freedoms of others; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose”.
The Attorney General also 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 of the first judgment]. 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 of the first judgment].
Article 19 East Africa and the Kenya Christian Professionals Forum were admitted as interested parties to the litigation. Article 19 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. 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 of the first judgment]. 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 of the first judgment].
On September 21, 2018, the High Court granted a conservatory order, ordering 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 of the first judgment]. The judge who heard the application for the conservatory order, Judge 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 of the first judgment].
In that first judgment, the Court held that Kahiu’s case was not “so frivolous that it can be terminated at this stage” [para. 54 of the first judgment] 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 Court noted that “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 of the first judgment]. The Court 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 of the first judgment]. The Court commented 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 of the first judgment].
The Court recognized that a team of examiners assigned by the Board had initially rated the film suitable for adult viewing before banning it [para. 59 of the first judgment], and that lifting the ban for seven days to allow viewing to adults only “would suffice for the Oscar nominations” [para. 63 of the first judgment]. 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. The Court stressed the importance of the right to freedom of expression and 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 the Court 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 of the first judgment]. The Court 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 of the first judgment].
On April 29, 2020 the High Court delivered judgment in the final determination of the constitutionality of the ban. The Kenyan Human Rights Commission was admitted as an interest party for this final determination.
Judge Makau delivered the judgment of the High Court. The central issue for the Court’s determination was whether the decision to ban the film – and the legislation that empowered the Board to take that decision – were a justifiable limitation of Kahiu’s right to freedom of expression.
Kahiu argued that provisions of the Films and Stage Plays Act, Cap 32 (the Act) and the Guidelines of the Kenya Film Classification Board (Guidelines), as well as the decision to ban the film itself violated the Constitution. She argued that the Act, Guidelines and ban constituted a limitation of her freedom of expression and artistic creativity (protected by article 33 of the Constitution), the freedom of the media (protected by article 34), the right of access to information (protected by article 35) and the principle of legality (protected by article 52(2)). Kahiu referred to the South African case of Midi Television (Pty) Ltd v. Director of Public Prosecutions (Western Cape) 2007 (5) SA 450 (SCA) and the European Court of Human Rights cases of The Sunday Times v. The United Kingdom App. No. 6538/74 and The Observer and Guardian v. The United Kingdom App. No. 13585/88, and submitted that the Act “creates a system of ‘administrative prior classification’” [para. 17]. Kuhui argued that “a system that required prior classification (of films) is a prima facie form of censorship and a violation of the right of expression” [para. 63]. She submitted that the Act “transfers control from the right-bearer to the administrative body”, which curtails the right-bearer’s right to freedom of expression [para. 17]. Kahui argued that it was not necessary or proportionate to ban the film and that the grounds on which it was banned had no “proximate relation” to the permissible grounds for limiting the right to freedom of expression as set out in article 33(2) [para. 18]. She also referred to the Kenyan case of Wilson Olal v. Attorney General  KLR, which had set out the conditions under which the right to freedom of expression can be limited, and argued that the conditions were not met in the present case.
Kahiu submitted that the Kenyan Constitution, in article 2(b), states that a treaty or convention that has been ratified forms part of Kenyan law, and that article 19 of the International Covenant on Civil and Political Rights and article 9 of the African Charter on Human and Peoples’ Rights protect the right to freedom of expression. She added that all state organs – like the Board – are bound under article 21(1) of the Constitution to “observe, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights”.
The general limitations clause in article 24 of Constitution requires that a party seeking to justify a limitation to a right must prove that the limitation is (1) provided by law; (2) serves a legitimate aim; and (3) is proportionate and strictly necessary in an open and democratic society. Kahiu argued that the aim of protecting children from harmful content could be achieved in ways that did not limit the freedom of expression: for example, putting an age restriction of 18 on the film rather than banning its exhibition would have been a proportional way in which to achieve the aim.
With specific reference to provisions in the Act which create strict liability criminal offences, the Creative Economy Working Group referred to the Kenyan case of Andare v. Attorney General  eKLR which had held that “the lack of mens rea creates a section which is wide and arbitrary and therefore it cannot constitute as a limitation by law” [para. 23]. In addition, Kahui and the Working Group maintained that the Guidelines did not have the status of law, were broader than necessary and so could not legitimately limit a constitutional right
The CEO of the Board, Mutua, and the Board submitted that in prohibiting the exhibition of the film in Kenya the Board had acted within the scope of the Act and the Guidelines, that it had not acted with “bad faith or with ill will or malice” and that the limitation to Kahiu’s rights was justified [para. 33]. The Board argued that the list of limitations in article 33 is not exhaustive because, as stated in Standard Limited v. Murungaru  eKLR, constitutional provisions need to be interpreted holistically and so article 33 must be read with article 53 and 55. In addition, the Board relied on international Conventions to which Kenya is a party – such as the Convention on the Rights of the Child – which oblige Kenya to “ensure the best interest of children are a primary consideration” [para. 29]. The Board maintained that as the limitations are prescribed by the Act they are prescribed by law and, with reference to the Indian case of Abbas v. The Union of India  AIR 481, 1971 SCR (2) 446, argued that the Act did pursue the legitimate aim of protecting the public. The Board also submitted that the Act’s limitations were necessary in order to achieve that legitimate aim. In addition, the Board submitted that the Guidelines constitute statutory instruments, and that the Act’s provisions were not vague or overbroad.
The Attorney General argued that the Act was constitutional as it “protect[s] and enhance[s] respect for the rights of other consumers and especially the most vulnerable” [para. 35]. It added that the “film was banned as it is not in line with the culture and moral values of the Kenyan People” and so the Board had acted within its mandate and the law [para. 35]. The Attorney General maintained that, with reference to article 19 of the ICCPR and the Kenyan case of Mutunga v. R (1986) KLR 167, the enjoyment of all constitutional rights must not prejudice others’ enjoyment of rights.
Article 19 submitted that the Act’s provisions were vague and overbroad and delegated arbitrary power to officials and the Cabinet, and the limitations to the right to freedom of expression were not necessary and proportionate.
The Kenya Christian Professionals Forum argued that the Board’s decision was not arbitrary and that, as the right to freedom of expression is not absolute, the limitations to the right established in the Act and Guidelines were reasonable and justifiable. In respect of categories of thematic areas set out in the Guidelines the Forum maintained that these exist “in order to maintain the moral standards of the viewers and discourage the audience to sympathise with criminals and prevent disrespect to the rule of law” [para. 14].
The Kenya National Human Rights Commission stressed that any limitations to the right to freedom of expression must fall within the provisions of article 33, read with article 24. It added that the Act’s provisions were vague and overbroad, and the Act conferred unfettered discretion on officials and is vague “for lacking any guidelines or standards on how the licencing officer is to exercise their power” [para. 46].
The Court held that as Kahiu had not utilized the appeals process as set out in the Act before lodging this application at Court, the Court did not have jurisdiction to hear the matter. However, the Court did consider the merits of the case and assessed whether the right to freedom of expression had been infringed. The Court examined the status of the Guidelines and stated that, although the Guidelines had not been published in the Kenya Gazette as required by the Statutory Instrument Act, 23 of 2012, they serve an important purpose in protecting the public from harmful audio-visual content and so the Court granted the Board one year to “bring the Guidelines under the ambit of the law” [para. 145].
The Court acknowledged that “freedom of expression is not the sole preserve of those who would express lofty, noble or merely in offence (sic) sentiments” as it should “enable individuals to convey and receive views on a wide range of matters” [para. 56]. The Court referred to the South African case of Print Media South Africa v. Minister of Home Affairs 2012 (6) SA 443 (CC) which had stressed the importance of moral agency of individuals in forming their own opinions based on a free sharing of information and ideas.
In examining the law on prior restraint of publication the Court referred to the South African case of Midi Television v. Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) and the U.K. case of Attorney General v. British Broadcasting Corporation  AC 303 (CA) which had held that “prior restraint of a publication, though occasionally necessary in serious cases, is a drastic interference with freedom of speech and should only be ordered where there is substantial risk of grave injustice” [para. 65].
The Court held that Kahui bore the onus of establishing the unconstitutionality of the Act, and set out the limitations test as required by article 24: “(a) whether the limitation was ‘prescribed by law’?; (b) whether the limitation pursues a legitimate aim?; (c) whether the limitation was necessary in a democratic society?” [para. 106]. The Court noted that the requirement that a limitation be provided by law requires that the law “be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public” [para. 74]. It added that the state seeking to justify a limitation to a right must “demonstrate the legal basis for any restriction” and the law “should not grant executive or administrative authorities excessively broad discretionary power to limit expression” [para. 74]. Despite the Court recognizing that a law has to be “clear and accessible to citizens” to constitute a “law” under article 24, it did not undertake an analysis of the content of the legislation and held that because the limitation on freedom of expression in the present case was provided by the Act “the first test of constitutionality is met as the limitation was duly prescribed by law” [para. 107].
The Court noted that the wording of article 33 demonstrates that the right to freedom of expression is not meant to be absolute, and that subsection (2) serves as an internal limitation: “constitutionally protected expression does not extend to” the types of expression in article 33(2) [para. 91]. However, the Court then held that “the limitations as provided under Article 33(2) of the constitution are not exhaustive, therefore other limitations could be imposed on the right to freedom of expression, but only in as far this will be in accordance with the provisions of the constitution” [para. 91]. Here the Court referred to the Murungaru case where the Court of Appeal had held that the internal limitations in article 33 should not be looked at in isolation and, with further reference to Kenya National Human Rights Commission, SC Advisory Opinion Ref. No. 1 of 2012, emphasized the need for a holistic interpretation of the Constitution. The Court stated that interpreting article 33(2) narrowly “would result in legitimizing and allowing films with themes that depict child pornography, paedophilia, glamourize success in drug abuse, amongst other themes which are explicitly adverse against national soul, ideas and aspirations as a nation” [para. 97].
The Court read article 33 alongside articles 53 and 55 of the Constitution. Article 53 states that “every child has the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour”. Article 55 obliges the State to take measures to “ensure that the youth … are protected from harmful cultural practices and exploitation”. The Court accepted that Kenya has ratified the ICCPR (which protects the right to freedom of expression in article 19), but emphasized that the country has also ratified the Convention on the Rights of the Child and held that this, when seen alongside the need to interpret the Constitution holistically, demonstrates that article 33(2) cannot be given a narrow meaning.
The Court examined the purpose and effect of the Act, and noted that the Board had been established by the Act “to regulate film industry and to ensure professionalism in the industry” and that the purpose was “to ensure that the media content being released for public consumption is suitable and compliant with the laws of the country” [para. 103]. With reference to the Canadian case of R v. Oakes (1986) I.S.C.R 103, the Court examined whether the limitation in the Act pursued a legitimate aim and held that because section 15 of the Act refers to the “protection of women and children against sexual exploitation or degradation in cinematograph films and on the internet” the purpose of the Act is to protect adults – and not only children – from harmful content in films [para. 112].
The Court distinguished between the effect of expression through text or audio and expression through audio-visual mediums and stated that the “influence held by audio-visual medium cannot be disputed with the unrivalled capability of influencing the views and perceptions of, not only an individual, but of a whole generation” [para. 113]. It added that “the risk of abuse of such an influence is a pressing and substantial societal concern and is a boom waiting to explode and cause untold damages” [para. 114]. Accordingly, the Court held that “the protection of the public from audio-visual content that is prejudicial to the maintenance of public order, offensive to decency, and undesirable acts in the public is indeed a pressing and substantial societal concern” [para. 115].
In applying the third step of the limitations analysis, the Court noted that in order to determine whether the limitation was necessary it must assess the measures the Act puts in place. Here the Court compared the Kenyan measures with those in India, – described by the Court as “the largest democracy” [para. 116] – South Africa, Nigeria, the United Kingdom and the United States. The Court referred to the U.S. case of Times Films Corporation v. Chicago 365 U.S. 43 (1961) which had “expressly prohibited the exercise of Administrative prior classification of films”, but noted that other U.S. cases – including Near v. Minnesota 283 U.S. 687 – accepted that the prohibition against prior restraint was not absolute [para. 128]. The Court concluded that “it is clear that even the most liberal jurisdiction, such as that of United States of America, still advocates for some form of prior restraint to the production, distribution and exhibit of cinematograph film” [para. 130]. Accordingly, the Court held that the Act’s measures and those taken by the Board to ban the film were “reasonable and justifiable in a democratic society based on human dignity, equality and freedom” as they were targeted at meeting the Act’s objectives [para. 131]. The Court found that there was “a rational nexus between the refusal of the certificate of Approval to a film and the pressing and substantial societal need to protect the public from content that is prejudicial to the maintenance of public order, would offend decency, or would be undesirable in the public interest” [para. 131]. Here the Court made it clear that the issue in the present case was “the issue of homosexuality and lesbianism” [para. 131], and held that the measures were proportional because the “strongest measures” may be applicable when the objective is particularly important to society [para. 131].
The Court assessed the question of necessity of the Act’s measures and held, with reference to the ECHR case of Handyside v. The United Kingdom (App. No. 5493/72), that where a limitation to a right is made on the “grounds of protection of morals in a democratic society” the legislature has a discretion and a “margin of appreciation” in determining what is necessary [para. 132]. The Court commented that the Handyside judgment demonstrates that different morals may apply in different countries and so stressed that the fact that the film had obtained a different classification in South Africa “cannot be a basis for this court to overturn the decision of the Board” [para. 133].
Accordingly, the Court held that the Act and the Guidelines “are constitutional, legal, valid and the limitations implied therein are reasonable and justified in a democratic society” [para. 135].
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This judgment severely contracts expression in Kenya by ruling that public morals – the content of which was not expanded upon in the judgment – can legitimately restrict freedom of expression. In addition, the Court dramatically extends the reach of the categories of expression that are not protected by the Constitution by holding that the list of excluded expression in the constitutional provision is not absolute.
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