Court of Appeal strikes down ban on lesbian-themed film 'Rafiki'

The Court of Appeal has declared sections of the Films and Stages Plays Act, which gave the police sweeping powers to forcefully stop making any scene and allowing Kenya Films Classification Board (KFCB) to retain any parts of a film that have been removed after being deemed offensive or in contravention of the law.

Justices Lydiah Achode Wanjiru Karanja and Francis Tuiyott said Section 19 (1) is unconstitutional for permitting the use of force other than in instances where the safety risk to a person or property, or where animals are subjected to cruelty or unnecessary suffering.

At the same time, the bench headed by Justice Karanja ruled that it was unfair to ban the film Rafiki for depicting homosexuality.

They observed that KFCB admitted that there are films classified for adults only that are allowed in Kenya, showing scenes of drug use but not advocating for it.

 The trio said that Kenya cannot bury its head in the sand about homosexuality, just as it is aware of drug abuse. According to them, the outright ban was against the freedom of expression.

“The Board charged with classifying films concedes that gayism, lesbians and bisexualism are realities of current Kenya. Just like we live in a country in which use of banned narcotic substances is real. So, while the guidelines rate films that depict drugs as “adults only”, they ban those that promote or endorse drug abuse.”

“Drawing from this illustration, we come to the conclusion that outrightly banning a film that only depicts a homosexual lifestyle without promoting or glamorizing it is a disproportionate limitation to the right of freedom of expression,” ruled.

 The court also found that scenes of homosexuality would have been a reason to rate Rafiki as adults only, instead of banning it.

They, however, directed that the producer of the film should now exhaust the appeal mechanisms provided under the law.

Producer of the movie, which was banned in Kenya in April for allegedly promoting lesbianism, sued the regulator, citing unfairness and unfriendly regulations.

Wanuri Kahiu, the producer of Rafiki movie argued that the Kenya Film Classification Board(KFCB) limited her freedom of expression and, at the same tim,e unfairly adjudged her creativity without giving her an opportunity to defend it.

 In her court papers, Wanuri claimed that the decision by the then Ezekiel Mutua-led board was also an abuse of her right to be creative.

 The film is adapted from a book called Jambula Tree by Ugandan author Monica Arac de Nyeko. It is the story of forbidden love and unfulfilled aspirations.

Rafiki is about two girls, daughters of popular politicians, who fall in love and struggle to navigate this newfound romance with their families in a homophobic society.

In the case against KFCB and the Attorney General, the producer also argued that her film does not breach the Constitution as it does not promote war, hatred or hate speech

“The petitioners seek conservatory orders suspending the respondents’ decision to enable the Oscars selection committee in Kenya consider the film for entry as Kenya’s entry to the Academy for the best foreign language film category award at the 2019 Oscars awards, of which entries close on September 30,” she said.

She is of the view that the regulations by KFCB on what can be shown on television are too vague and broad.

 According to Wanuri, the regulations are inhibitive to creative people who would wish to show what society is going through.

She wants the court to lift the ban and also compensation.

KFCB on the other hand, argued that Rafiki was against Kenyan culture adding that it was protecting children from exposure to harmful content.

It argued that she had jumped the gun as there was a clear appeal process after the board delivered its verdict.