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Kenya: The Kenya High Court ruling on the ban of the Rafiki film violates international standards on artistic expression

6 May 2020
Kenya Film Classification Board banned Wanuri Kahiu's film Rafiki over its LGBT content depicting a love story between two women.
Photo: Section of Rafiki film poster / Rafiki Facebook page

 

6 May 2020

On 29 April 2020, the Kenya High Court ruled that that the legislative measures used by the Kenya Film Classification Board (KFCB) in 2018 to censor the Wanuri Kahiu’s film Rafiki (Friend) do not breach Article 33 of the Constitution of Kenya, which guarantees the freedom of expression 

Freemuse Executive Director Dr Srirak Plipat said that “Artistic expression on LGBTI topics is protected under international human rights law and limiting it on the grounds of protecting public morality cannot be found legitimate. The Kenyan High Court failed to recognise international human rights standards which are legally binding to KenyaSadly this is a step backwards for the country. 

Kenya ratified International Covenant on Civil and Political Rights which recognizes freedom of artistic expression in 1972. This international law requires the Kenya state proof that its restriction of artistic freedomin this case, the ban of the movie, pass the necessity and proportionality test. 

The film crew appealed to the KFCB decision to ban the film’s release, invoking sections 8,12 and 13 of the Film and Stage Play Act Cap 222 and sections 5 and 6 (sex, obscenity, nudity) of the Kenya Film Classification Board Guidelines 2012. Determining that these legislations are constitutional and do not offend the Article 24 of the Constitution of Kenya (Limitation of rights and fundamental freedoms), the court argued that the ban of the film did not breach the Constitution. 

Film director Wanuri Kahiu told Freemuse: “It is a sad day for freedom of expression and freedom of speech in Kenya. The ruling upholding the ban on Rafiki denies the right of all narratives including that of LGBTQ people. We will continue to fight for the rights of all.” The film crew – director Wanuri Kahiu and producer Steven Markovitz – informed Freemuse that they will appeal this ruling.   

The film Rafiki which depicts a love story between two women was banned in April 2018 “due to its homosexual theme and clear intent to promote lesbianism in Kenya contrary to the law and dominant values of the Kenyans.”1 This ban was temporarily lifted in September 2018 by the Kenya High Court, which allowed the film to be screened for one week in local cinemas, to make the film eligible for submission to the Best Foreign Language film at the 2019 Oscar Academy Awards2. 

In the State of Artistic Freedom 2020Freemuse documented that 73 films were censored across the world throughout 2019. Politics was one of the main rationales for violations and was responsible for 38% of all artistic freedom violations against films and filmmakers.  

 

References:

1 ‘Canned in Kenya, set for Cannes: Rafiki falls foul of Nairobi film censors’, Guardian, 27 April 2019, https://www.theguardian.com/global-development/2018/apr/27/kenya-rafiki-film-nairobi-censors-cannes-wanuri-kahiu, (accessed on 18 September 2019). 

2 ‘Kenya lifts ban on lesbian film ‘Rafiki’ making it eligible for Oscars’, CNN, 21 September 2018, https://www.cnn.com/2018/09/21/africa/kenya-court-lifts-ban-on-rafiki/index.html, (accessed on 18 September 2019). 

 

 

 

30 May 2018

Kenya: Movie banned over LGBT content

On 27 April 2018, the Kenya Film Classification Board (KFCB) banned Wanuri Kahiu’s film Rafiki (Friend)—the country’s first film to be nominated for an award at the Cannes Film Festival—over its LGBT content, reported The Globe and Mail. The film depicts a love story between two women.

Kahiu has said in earlier interviews that she had been nervous about the film’s reception in Kenya, but found support from government authorities and the local film industry. But on 27 April, the film board accused producers of changing the original script that was licensed for production, reported Australian news source ABC.

KFCB CEO Ezekiel Mutua, who since 2016 has been criticised for his frequent banning of artistic works, said the movie “legitimizes homosexuality against the dominant values, cultures and beliefs of the people of Kenya”, reported The New York Times.

The ban, which went through despite the producers’ request for an age 18 classification rating, happened at a time when the High Court is reconsidering laws discriminating gays and lesbians. According to the current Penal Code of Kenya: “any person who has carnal knowledge of any person against the order of nature is guilty of a felony and is liable to imprisonment for fourteen years”.

 

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