Wanuri Kahiu, Creative Economy Working Group Challenge Constitutionality of Rafiki Ban

Rafiki film producer Wanuri Kahiu and the Creative Economy Working Group (CEWG) have filed a constitutional petition challenging the decision of the Kenya Film Classification Board (KFCB) and its CEO – Ezekiel Mutua – to ban the film in Kenya.

The petition argues that the ban is against freedom of expression, freedom of artistic creativity and goes beyond the limitations stated in Article 33 (2) of the Constitution of Kenya.

On April 26th, 2018, the Board’s CEO notified Wanuri Kahiu of the Board’s decision to censor the film Rafiki as she declined to remove what is defined as offensive classifiable elements.

“As filmmakers, creatives and storytellers we believe in the intrinsic value of our work. We believe that freedom of expression is the cornerstone of any democracy. The unreasonable and unjustifiable censorship of films infringes on our rights of freedom of expression and freedom of the media as enshrined and guaranteed in the Constitution of Kenya,” said Wanuri Kahiu.

The right to freedom of expression has been anchored in regional and international human rights instruments signed and ratified by Kenya such as Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights and Article 9 of the African Charter on Human and Peoples’ Rights which Kenya is obligated to respect, promote and fulfill.

The petitioners are challenging 12 sections of the Film and Stage Plays Act and the Kenya Film and Classification Board Classification Guidelines, 2012. These sections criminalize free expression through film, limit freedom of filmmakers to seek, receive or impart information or ideas, restrict freedom of artistic creativity and limit freedom of expression.

“Sections of the Films and Stage Plays Act, CAP 222 are a threat to free speech and media freedom. They limit the freedom of artists to impart information and restrict freedom of artistic creativity, contrary to the constitutional limits of freedom of expression”, said Wanuri.

The petitioners also want the application to suspend the respondents’ decision to restrict the film pending hearing and determination of the petition.

Under a Certificate of Urgency, the petitioners want the Court to grant a Conservatory Order allowing the lifting of the ban to enable the Oscars Selection Committee Kenya to consider the film for entry to the Academy for the Best Foreign Language Film category award at the 2019 Oscars.  Without lifting the ban, the film cannot be considered for selection. The entries close on 30th September 2018.

On the issue of the Oscars, Wanuri adds “this isn’t about me personally. It’s about the freedom for all industry players to tell the stories they want to tell and not to be censored. The world is quickly becoming a village and the film industry is worth more than USD 30 billion globally. The opportunities for more Kenyans especially the youth to participate in this sector is immense. We should not let colonial laws stop us from achieving this.”

The petition which was filed on Tuesday 11th September awaits conservatory orders as the Judge gives the other parties the chance to respond.

At a court hearing, Justice Wilfrida Okwany ordered that KFCB is served and all parties to appear before her on Friday 14th September for directions.