Kenya: Draft law on film and theatre censorship broad and severe

31 October 2016

Ezekiel Mutua, Kenya Film Classification Board (KFCB) CEO, has come under fire ever since he unveiled a draft Films, Stage Plays and Publications Act in September 2016 intended to replace the outdated 1963 Films and Stage Plays Act, due to it extending the board’s responsibilities to regulating all parts of the creative process, instituting severe punishments and broadening the scope of the various media the board would regulate, reported Daily Nation on 25 October 2016.

Under the proposal, the KFCB, which already classifies films and stage plays, as well as their promotional materials, would also expand their regulatory powers over broadcast and online content, outdoor advertisements, print publications and the registration of cinemas and theatres.

“This law is working against the government’s efforts to grow the creative sector. It is giving a lot of power to the CEO of the KFCB, giving rise to rumours that this is a power grab,” Gerry Gitonga, a show business lawyer, told Nairobi News on 13 October 2016.

Mutua has said the KFCB needs more powers over television and online content “to rein in the harmful effects of technology”, and in a meeting with parliament members said that Kenya “is in a moral crisis”. He has further asked the government to increase the board’s budget five-fold.

Bill would kill Kenyan creativity
Many have expressed their concern over the draft bill as it would not only kill creativity, but would also stifle the country’s film industry, which, though still in its infancy, the government wants to nurture into an economic driver and a way for Kenyan talent to have the ability to create art, reported Nairobi News on 25 October 2016.

Ministry of Information and Communications Secretary Joe Mucheru said that the bill was still in a “draft stage” and that ultimately “sanity will prevail”, further stating that it would be amended after consultations within the Cabinet and taking into account public feedback.

“Other views will come in and I think that at the end we will get a position where we cannot kill innovation… so I think the country should not be panicking,” Mucheru said.

How a film would be certified and released
Gitonga broke down the 34-page draft bill for Nairobi News, enumerating a litany of disturbing powers:

First, a director or production company would need to get a government certificate prior to filming. This is done by submitting a full script, including a full description of every scene in the film and the full text of anything spoken in the film, to the KFCB CEO. Production cannot begun until a certificate is issued.

If a certificate is not obtained and filming begins, everyone involved in the filming – director, actor(s), proprietor, promoter, financier, cameraman – can be arrested, imprisoned for up to two years and fined for no less than 500,000 Shillings (approx. $4,850 USD).

If approved, the CEO can make it mandatory that a police officer with a rank of inspector or above, or any other person appointed by the CEO, be present for the filming. This person has the power to stop production at any point and files a report to the CEO, who then is the only person allowed to approve the continuation of filming the scene or film.

If a production continues to film a scene that was stopped, every person involved in the shoot – actor(s), director, cameraman, proprietor, producer, promoter – can be arrested, imprisoned for up to four years and fined for no less than 5,000,000 Shillings (approx. $48,500 USD).

The CEO can also force a production to put up a bond to ensure they will abide by the terms and conditions of the approved certificate.

If any changes are made to the film and approved script, a formal application of the changes needs to be submitted to the CEO for approval, who has the ultimate authority on whether the edits can go ahead.

And then, once production concludes, the CEO has to rate and approve the final film, before any promotion, distribution or exhibition can begin.

Further, all these proposed regulations would not only apply to Kenyan-produced films, but extend to all films planning on being filmed in Kenya, whether in full or in part.

Powers extended beyond film
Apart from this proposed control throughout the entire process – from conception to execution to release – the KFCB and its CEO, via this proposed bill, would require all internet and cellular providers to supply lists of all exhibitors and distributors who use their services to show content so that the board and CEO can ensure all that material has been rated and classified.

The providers would also be responsible for ensuring that all content that passes through their services has been rated and complies with the board’s guidelines, and must report all those who maintain, host or distribute content that is in violation with the proposed bill.

If a service provider fails to perform any of these actions, they can be imprisoned for up to two years and pay a fine of 2,000,000 Shillings (approx. $19,400 USD).

Additionally, the new law would create the new position of “Compliance Officers” who would monitor and uphold the regulations for any of the art forms under its powers, and would also be protected from personal liability for acts done within their duty if they acted in good faith.

» Read the draft bill in full here


» Nairobi News – 28 October 2016:
Why MPs want to give Ezekiel Mutua more powers over TV content

» Daily Nation – 28 October 2016:
Laws must be in touch with reality

» Nairobi News – 25 October 2016:
Ezekiel Mutua in humiliation after CS vows to amend his ‘insane’ bill

» Nairobi News – 13 October 2016:
25 Reasons why Ezekiel Mutua’s proposed law should scare you

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