A few months back, as the Kenya Film Classification Board (KFCB) signed an MOU with its equally controversial South African counterpart the Film and Publication Board (FPB), we warned that this partnership may trigger an attempt by the KFCB to seize even more regulatory space for itself beyond films and broadcast content. Sure enough, that dreadful day is finally upon us.
The KFCB has published a draft bill (the Films, Stage Plays and Publications Bill) seeking to grant itself far-reaching powers to censor all forms of media. Basically, the bill reads like a lost chapter of George Orwell’s 1984. Following a scathing backlash against the bill on social media, the KFCB stated that the document was merely a “review” of the current Films and Stage Plays Act. It has also arranged a stakeholder meeting to be held on October 11, 2016 at the Louis Leakey Auditorium to discuss the bill.
What are the exact reasons for the noise over this draft bill, you ask? This article will briefly break down some of the most contentious provisions of the document and their potential implications if the bill passes into law in its current form:
A New Proposed Statute or A Review of Cap 222?
First things first. For some reason, the KFCB has stated that this bill is a review of the current Films and Stage Plays Act (Cap 222) and not a proposed draft for a new law. However, the bill states clearly in its last provision (Section 87) that one of its intentions is the repeal of Cap 222. Ordinarily, extensive amendments to statutes are made either through an amendment bill with the same title as the original statute while minor alterations are made through a miscellaneous amendments bill. This draft bill is neither of those. It is a proposed brand new law.
Expanded Mandate (Section 3 & 7)
The bill attempts to expand the mandate of the KFCB beyond films and stage plays to all broadcast content, advertising, games, print publications and online content. This means that the Board intends to control and regulate each and every form of media available today. The content will be required to be reflect “national values and aspirations of the people of Kenya”, two extremely vague principles not present in Cap 222 and undefined by this bill. This provision seeks to legitimize the regulatory overreach that the Board has brazenly undertaken since late last year; and to provide a stronger basis for the wrongful expansion of its mandate through the Programming Code.
Board Composition (Section 8 & 9)
While the bill promises a superficial improvement in the composition of the Board by factoring in constitutional gender, special group and diversity requirements, it is silent on the specific checklist of expertise or stakeholder representation that the five non-public officer members are supposed to possess. This gap leaves room for the appointment of token members who will likely neither add value to the Board nor perform their functions independently.
Unusual Consolidation of Powers by the CEO (Sections 22 – 26)
The bill grants the CEO powers to unilaterally perform certain functions that would require the input of the entire Board. According to the bill, the CEO makes decisions on applications for filming certificates; issues filming certificates; imposes alterations and additions to films; approves or rejects the alterations and additions; and approves film posters.
These functions are supposed to be carried out by the Board as a whole. Instead, the language of the bill sets up the CEO as judge, jury and executioner – an unimaginable scenario in all other statutes involving state corporations, leading to more questions than answers. Why would all these core functions and powers of the Board be vested in a single ex-officio member? Does this terrible scenario reflect the current situation at the KFCB? If not, what else can explain how these preposterous provisions have been drafted and published with such confidence? These provisions are probably among the strangest samples of legislative drafting that Kenya has witnessed in a long time.
Colonial-Era Policing of Film Production (Section 26)
While the search and seizure exercises carried out by the KFCB certainly require police assistance, one would have thought that the bill would do away with the Section 9 of Cap 222 which provides for the monitoring and controlling of film production by the police. The bill retains this remnant of colonial-era film censorship practice where a police officer approved films for exhibition.
Re-classification (Section 33)
After a film has been classified, a filmmaker may only apply for re-classification of the film to a less restrictive rating after three years. This provision does not achieve the objective of re-classification where the Board is supposed to provide information on the “cuts” or alterations that could be made to the film for a more favourable rating. Once the cuts are made, the film should be re-classified immediately. A three year waiting period serves no useful purpose.
Excessive Penalties for Offences
The bill imposes a raft of penalties for various offences, some of which are unreasonably excessive. The maximum penalty under Cap 222 is Kshs. 100,000 and/or between 2 months – 5 years’ imprisonment. Under the bill, for example, distributing or exhibiting an unclassified film or visual media earns a maximum penalty of Kshs. 2 million and/or 5 years’ imprisonment. The corresponding offence under the Copyright Act (distributing unauthorized copies of a work) imposes a maximum fine of Kshs. 400,000 and/or 2 years’ imprisonment. In other words, a filmmaker could pay heavier fines and be confined to prison longer than those selling pirated copes of his/her films!
ISP Liability (Section 39)
Inspired by the ill-conceived internet censorship bill drafted by South Africa’s FPB, this bill imposes a ridiculous duty upon internet service providers (ISPs) to ensure that the online content on their platforms is provided by registered “exhibitors and distributors” and is compliant with KFCB guidelines. ISPs are also required to prevent the hosting of objectionable content and to report offenders. Firstly, the bill does not define the limits of “online content” leading to an assumption that everything online is to be censored. Secondly, the bill does not define “internet service provider” leading to an assumption that the term means all ISPs from mobile telcos like Safaricom and website hosts to platforms for user-generated content like YouTube or Twitter.
Once again, this provision generates more questions than answers. Does it mean all internet users could at some point be regarded as exhibitors or distributors and therefore have to be registered by KFCB? Wouldn’t this provision require ISPs to put in place surveillance mechanisms to monitor the activities of their users? How is that supposed to work without any tangible data protection and privacy laws in place? How can ISPs feasibly monitor and assess content generated by the millions every hour? Are ISPs expected to bear the costs associated with this monitoring and reporting? Doesn’t this provide a dangerous opportunity for the curtailing of fundamental and constitutional freedoms?
Censorship of Print Publications (Sections 53 – 61)
Under the bill, the KFCB is granted extended powers to classify printed publications as either objectionable or not objectionable. Without a definition of “publication” the assumption is that the term will apply to every form of printed material that is published. A publication could be restricted for containing two parts/passages depicting objectionable themes such as sex, horror, drug use in a manner deemed to be threatening to the public. Border control measures will also be put in place to prevent the importation and distribution of objectionable publications. This is a step away from the politically correct “classification” that the Board claims to do for the protection of children towards absolute censorship and control over the content adults choose to create or consume.
THE BOTTOM LINE
Even though the Films, Stage Plays & Publications Bill is still in the early stages of development, it represents a frightening statement of intent by the KFCB. Given the KFCB’s record of aggressive overstepping of its mandate, lack of due process, lack of impartiality and bias towards certain special interests, it would be foolhardy to allow this bill to pass into law in its current form. The potential harm from censoring thought, creativity and information through this bill is too great to ignore other less invasive methods of protecting children from harmful material.
It would be dangerous to grant a single body such sweeping powers to censor and control each and every form of media, a move that essentially amounts to thought policing. It would be even more dangerous to allow ISPs to breach the privacy of all of its users and to monitor their activities without reasonable cause. It would be myopic to ignore the chilling effect that this bill would have on our struggling creative industries. The KFCB’s good intentions aside, this is the sort of bill you would expect to be drafted in an oppressive dictatorship or a religious extremist state. I want to believe that Kenya is none of those terrible things.
Update: The draft bill has been trashed and the process of review of Cap 222 will start afresh with proper public and stakeholder participation.