On September 10, the Kenya Film Classification Board unveiled a draft law that it hoped would replace the outdated Films and Stage Plays Act of 1963.
However, stakeholders quickly realised that the amendments presented one of the most dangerous attacks on freedom of expression that had deep implications on filmmakers, actors, producers, publishers, online users and bloggers, internet service providers, and scrip writers.
The proposals were in line with recent whimsical, arbitrary, and controversial actions by the board’s CEO, Ezekiel Mutua, on various forms of expression including TV programming, coverage of protests, a podcast, YouTube videos, and the banning of movies such as 50 Shades of Grey, which he claimed promoted immoral behaviour.
Clearly, the proposed law was a calculated move by the board to try to legitimise its previous controversial actions by expanding its mandate.
Whereas the Act mandated the board to classify films, stage plays, and their promotion posters, the proposals expand its mandate to include broadcast and online content, outdoor advertisements, print publications, and registration of cinemas and theatres.
This is akin to a situation where the Law Society of Kenya would push for amendments to the LSK Act to give it powers to regulate the affairs of accountants and nurses.
Article 33 of the Constitution enshrines the right to seek, receive, and impart information, including freedom of artistic creativity.
The Constitution also provides that freedom of expression can only be limited pursuant to Article 33 (2) in cases of propaganda for war, incitement to violence, hate speech, advocacy for hatred that constitutes ethnic incitement, vilification of others, or incitement to cause harm or hatred based on discrimination.
Additionally, Article 19 of the International Convention on Civil and Political Rights recognises limitation on grounds of protecting public morals.
But who gets to decide what entails public morals? The Constitution, which is the legal yardstick that all other laws must comply with, only talks about national values which, according to Article 10, espouse progressive ideals of patriotism, national unity, sharing and devolution of power, the rule of law, democracy, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised, good governance, integrity, transparency and accountability, and sustainable development.
Mr Mutua appeals to parents and religious leaders by claiming that his crusade is all about protection of children from immoralities such as promotion of homosexuality and prostitution.
He understands that issues of morality are vague and that he can count on parents and religious leaders to donate their personal responsibility to monitor what children are exposed to to the Kenya Film Classification Board.
However, as it stands, the board is only mandated to classify films and play acts in order to enable responsible parents to prevent their children from gaining access to such content.
Most importantly, the proposed amendments fail to define concepts such as “national values” or “moral standards”, meaning that none of the notions relied upon would have a uniform meaning or interpretation among ordinary citizens.
It is clear that what Mr Mutua has been doing is in contravention of values such as human dignity, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalised.
The main concern of stakeholders, especially those involved in filmmaking and stage plays, is that the amendments spell a clear shift from regulation by classification to regulation of the creative process.
Suffice it to say that it is a significant change that infringes on the freedom of artistic creativity secured in the Constitution under Article 33.
Other absurd provisions include requiring internet service providers to ensure that users do not access immoral or pornographic content and the sweeping powers to enter premises where a film is being created or stored for purposes of confiscation or even destruction without a warrant.
The Cabinet secretary for ICT must intervene to ensure meaningful public participation in order to bring forth a law that is owned by all stakeholders.
International best practice and the realities on the nature of communication in the 21st century and constitutional provisions on freedom of expression must be adhered to during this process.
Mr Kiprono is a senior programmes officer at Article 19 Eastern Africa. firstname.lastname@example.org. Twitter: @kipdemas