How does the average protection racket work? First, it secures territorial monopoly over the area it wishes to control, quite often by muscling out competitors through extra-legal means. If there is no obvious demand for its protection services, the organization will go out of its way to create that demand by propagating an atmosphere of fear or insecurity. Finally, it monetizes its services by charging its “customers” for the services. Following an uncannily similar process, the Kenya Film Classification Board (KFCB) has metamorphosed from an obscure regulator of films and stage plays to a controversial body attempting to secure far-reaching censorship powers over all audio and visual media on every platform, including the internet.
This three part series traces the path of the KFCB as it rapidly goes rogue. Part I looks at the colonial foundations of the regulator, unsuccessful post-independence attempts to expand its mandate and its current campaign of carving up more and more regulatory territory for itself on shaky legal ground and at the expense of other regulators.
Colonial Foundations of Film Censorship
As in all other former British colonies, Kenya’s film censorship laws are the legacy of British colonialism. British colonial film policy in its African colonies began in the late 1920s based on a growing concern that exposure of the colonised populations to films that gave “unfavourable impressions as to the characteristics and habits of the white race” could threaten British imperial power.
The policy’s immediate objectives were twofold: to ensure the spirit of freedom and and independence was not transmitted to colonised audiences (especially through American films) and to ensure these films portrayed Europeans as superior to Africans (especially concerning the reputation of colonial women). Any films contradicting this image, argued Sir Hesketh Bell, former administrator of Northern Nigeria and Uganda in 1926, would “have a shocking and dangerous effect on coloured youths and men in the earliest stages of culture who have hitherto been led to consider the white man’s wife and daughters as patterns of purity and virtue.”
This was in line with the British colonial perception of itself as a “civilising” agent among the African populations it had colonised. Film censorship was just as important to British imperial ambitions as the suppression of African culture and the efficient penetration of education that was devoid of development-centric knowledge and packaged with Christianity.
This racist and paternalistic attitude was best exemplified by Kenya’s Select Committee on Film Censorship that advocated for segregation with regard to both exhibition and censorship of films. The Committee placed all Africans, and to some extent Indians, on a much lower mental category than European children. It perceived the entire African population as extremely vulnerable, psychologically immature and without the mental capacity to consume certain films without corruption.
Based on the Committee’s recommendations, the Theatres and Cinematographs Exhibition Ordinance was enacted. It provided for two separate Film Censorship Boards to regulate film exhibitions for Africans and non-African races. This situation persisted until as late as 1959 when revisions to this policy were considered but questions as to the racial composition of these Boards remained largely unanswered.
Increasing clamours by Africans for self-rule, the Mau Mau uprising and resultant State of Emergency between 1952 and 1960 heightened the anxieties of these censorship boards. In 1960, the Board banned a film entitled Freedom (possibly Cry Freedom) because the film centred on the building of political unrest and civil disobedience with a particular stress on the evils of colonialism; and because the dialogue of the film would be “beyond the understanding of all but a small proportion of Africans.”
The spirit of ideological control and paternalism underlying the British colonial film policy found itself a new home in the Films and Stage Plays Act (Cap 222, Laws of Kenya), enacted just before independence. The Film Censorship Board it established was just as useful to post-independence regimes in curtailing free speech and preventing any ideas of dissent through plays and films as previous versions were to the colonial government. In fact, Dr. Mukhisa Kituyi singled out the Board for gagging a budding theatre industry in the 70s and 80s.
Nation Media Group v. Attorney General 
Finally taking notice of the extent of modern Kenya’s cultural barrenness perpetuated by colonial and post-colonial policy, legislative discussions on the nature of media content turned way from films to television. While there appeared to be a need for a mechanism to regulate content on television, discussions by the National Assembly (such as this one and this one) revealed the immense difficultly of regulating content being transmitted from beyond the territory of this country via satellite and the difficulty of determining moral standards. Even as a section of legislators decried the country’s moral decay fuelled by television, no proper legislative mechanism was ever devised to deal with the issue.
Instead, the Minister of Information, Transport and Communication in 2001, Musalia Mudavadi, in the interests of safeguarding “public morality”, took a shortcut and attempted to extend the KFCB’s mandate to include regulating all content transmitted by broadcast networks through a Gazette Notice. The Nation Media Group promptly contested the Notice in court, sparking a six year court battle that would provide a precedent on the KFCB’s mandate and the Minister’s powers to expand its mandate.
The Minister’s notice was unconstitutional and infringed on the NMG’s rights by attempting to regulate their content on the strength of the Films and Stage Plays Act, which was only restricted to the regulation of films for exhibition. “Exhibition” in this case meant the conveying of a film through projection and not through broadcasting.
There was no evidence in the Act (enacted before the reality of present day television) pointing to the legislature’s intention to regulate broadcasters through the Act.
Any limitations to the freedom of expression must be by law. The Gazette Notice did not constitute such a law and could not meet the Constitutional requirements required to justify the limitations it sought to effect.
The Gazette Notice published for the purposes of public morality (a vast subject) did not pass the test of reasonableness.
The subjective and discretionary nature of the KFCB’s powers as provided for by the Act are vulnerable to abuse. It is unacceptable that the KFCB is entrusted with such arbitrary powers. This is “an outrage and an affront to democracy.”
Later in 2009, the then Attorney General, Amos Wako, recoginsed that the Films and Stage Plays Act did not provide a suitable legislative foundation for the KFCB to perform its bare functions regulating films, let alone other types of content on television. The most suitable solution would be to repeal the Films And Stage Plays Act completely and draft a fresh statute. No such efforts were made.
Instead, the legislature concentrated on making inadequate patchwork amendments to the Films and Stage Plays Act. Section 15 of the Act was amended to extend the KFCB’s functions to regulating the “broadcasting, possession, distribution and exhibition of films.” Ironically, no corresponding changes to the Act’s preamble were made. Section 11A was added, providing for the Board’s composition, but failed to include experts from the broadcasting industry. This is the strongest indication that the legislative intention of the amendments was to still restrict the KFCB to regulating films.
What this means is that at best, the amendments only extend the mandate of the board to regulating films that are broadcast on television and not any other audiovisual content. Not television programs, not radio programs, not advertisements, not live broadcasts of religious meetings or political rallies. Even this extended mandate to regulate films broadcast on TV is problematic, given the impracticability of regulating films transmitted by foreign media houses. The judgment in NMG v. AG asks how the regulation would apply to such broadcasts; and if the Board cannot regulate them, wouldn’t regulating local broadcasters alone be a case of discrimination?
Expansion of Mandate by the Communications Authority
The Kenya Communications Act was overhauled in 2009, transforming into the Kenya Information and Communications Act (KICA) with provisions touching on the KFCB. Section 46I of KICA prohibits broadcasters from broadcasting films whose approval for exhibition has been denied by the KFCB. That is the only role envisioned for the KFCB by KICA. However, a complication to this rather straightforward role was created by the Communications Authority.
Section 46H of KICA provides that it is the Communications Authority’s role to prescribe, enforce and review a Programming Code for broadcasters, in the absence of an acceptable self-regulatory mechanism. The Communications Authority developed and published a Programming Code in 2015 with several curious provisions concerning the KFCB.
The Code prescribed a watershed period during which content meant for adults was not to be broadcast. The Code then gave the KFCB the responsibility of classifying each and every form of content to be transmitted by broadcasters including TV programmes, commercials, programme promotions, community service announcements and station identifications.
These provisions must have found their way into the Code during the public and stakeholder consultation period when the Code was still in draft form. The feedback filed by stakeholders reveals the roots of the Communications Authority’s interaction with the KFCB and the development of a presumption that the KFCB was responsible for classification and rating of all content. Apart from the KFCB’s submissions, all other stakeholder responses were based on a presumption that they would be dealing solely with the Communications Authority.
The publishing of the Programming Code in December 2015 coincided with the appointment of Ezekiel Mutua as the new CEO of the KFCB in October 2015. Ezekiel Mutua was formerly a newspaper man with a controversial tenure at the helm of the Kenya Union of Journalists as well as a stint at the Ministry of Information Communications and Technology. His appointment at the KFCB turned out to be a perfect marriage of interests – on one hand a former journalist experienced in employing the media to advance his ambition and seemingly insatiable appetite for public attention; on the other hand a regulator on the decline keen to demonstrate its relevance.
By the time the subject of the Programming Code was once again presented to the public in January 2016, the extended role of the KFCB was mischievously packaged as an exercise involving “cross-jurisdictional responsibilities” between the Communications Authority and the KFCB. However, the legal reality is that the Programming Code is a victim of the same shortcomings identified and condemned by the High Court’s judgment in Nation Media Group v. Attorney General.
Through the Programming Code, the Communications Authority is attempting to abrogate its responsibilities under Section 46H of KICA and to assign those responsibilities to the KFCB, which has not been granted the powers to perform them by the legislature. Neither the ICT Cabinet Secretary nor the Communications Authority has the powers to extend the mandate of the KFCB, which is not even within the ICT Ministry but the Ministry of Sports, Culture and the Arts.
Furthermore, since the additional powers the Communications Authority is purporting to grant to the KFCB involve the limitation of rights and fundamental freedoms enshrined in the Bill of Rights, this must be done in accordance with Article 24 of the Constitution. This position has been reaffirmed by the High Court’s recent declaration of Section 29(b) of KICA as unconstitutional in Geoffrey Andare v. Attorney General & 2 Others.
The KFCB is currently restricted to only regulating films for exhibition and broadcasting. The mischief and inherent illegality of Section 3.2 and Section 16.2 of the Programming Code is as clear as day in light of the judgment in Nation Media Group v. Attorney General.
Armed with this quasi-mandate, the KFCB has proceeded to carve out more and more regulatory territory for itself beyond the solid foundation of the Films and Stage Plays Act or the wobbly regulations of the Programming Code. KFCB’s regulatory overreach began by its targeting of YouTube and Netflix, only to be contradicted by the Communications Authority which was alive to the reality that efforts to regulate such over-the-top services would be an exercise in futility.
Next, the Board descended upon the so-called Project X party, a case that should have been the preserve of the police, basing their involvement on an unsubstantiated claim that an international pornography ring planned to use the party to shoot pornographic films and promote homosexuality.
Cheered on by South Africa’s Film and Publication Board, the KFCB made it known that the next phase of their self-appointed mission to censor all content that does not conform to its perception of national values and morality will be social media and the internet.
The apparent lack of actual resistance from its targets has given the KFCB the brazen confidence to hunt down any and all sources of “immorality” irrespective of legal or Constitutional basis. So far, it has made more economic sense for most of its targets to revise their content than to waste valuable resources contesting a 3 second kiss in court, for example. The body’s latest extra-legal assault on the local advertising industry and highly anticipated full operationalization of the Programming Code in July 2016 may be the triggers that initiate a process confirming that the regulator has bitten off more than it can chew.
THE BOTTOM LINE
Even before one can scrutinize KFCB’s composition, methods, processes, justifications, record of public engagement and content of its regulations, the legal basis for its expanded mandate via the Programming Code is unacceptably far from what was anticipated by the legislature as it enacted and amended the Films and Stage Plays Act.
Even if this expanded mandate was beyond reproach, the regulator’s well documented willingness to operate outside the rule of law in the name of safeguarding values and morality leaves a lot to be desired. Left to their own devices, the KFCB could soon be asserting its control on every conceivable aspect of life beyond media, a phenomenon only experienced in oppressive, totalitarian and religious fundamentalist regimes.