The High Court of Kenya on Wednesday 29th April 2020 upheld the Kenya Film Classification Board‘s screening ban on the controversial same-love romance themed film ‘Rafiki‘, starring actresses Samantha Mugatsia and Sheila Munyiva, stating that the ban did not breach Freedom of Expression, Article 33 of the Constitution of Kenya.

In a court session conducted via Zoom video conference, Honourable Justice J. A Makau ruled that ‘the ban (by the Kenya Film Classification Board on does not in any way violate Artistic Freedom of Expression, but instead protect the society from moral decay. In his judgment, he stated that the petitioners failed to prove how the existence of these sections of the law violated the right of expression.

In a press release seen by Nate’s Crest Almanac, the Judge is said to have further stated that; “The jurisdiction of the (High) Court (of Kenya) was prematurely invoked. Freedom of Expression is not absolute, but subject to limitations under article 24. Kenya Film and Stage Play Act – Cap 222 and the Kenya Film Classification Board Classification Guidelines 2012 are constitutional and do not offend Article 24. The discretion of the Kenya Film Classification Board to restrict Rafiki is constitutional. Petition dismissed in its entirety with costs.”

“The Creative Economic Working Group (CEWG), a consortium of civil society organizations and institutions campaigning for the advancement of legislative and policy reforms in the creative sector for the advancement of culture, arts, and media in Kenya, expresses extreme dissatisfaction today [with the High Court Kenya ruling that the ban on (Rafiki Movie) do[es] not breach, Freedom of Expression, Article 33 of the Constitution of Kenya,” CEWG said in a release to media, adding that “The ban of [the film], using sections 8, 12 and 13 of the Kenya Films and Stages Act, sections 5 and 6 (sex, obscenity, nudity, restriction, and ban outlined) of the Kenya Film Classification Board Classification Guidelines 2012 are unconstitutional and violate freedom of expression including artistic creativity.”

Wanuri Kahiu, the Writer/ Director and Co-Producer of Rafiki — and the main petitioner in the case — said, “In accordance with article 22 (1) of our 2010 constitution, “Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed.” We proudly exercised this right. For over 50 years, retrogressive laws have suppressed bold artistic expression, criminalized art and artists and even seen Kenya lose some of her greatest minds and talent.

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“Outdated laws, such as in this case, the Film and Stage Plays Act (Cap 222), have been used to curtail the making, exhibition and licencing of films and plays in Kenya. These laws not only impede the rights of creatives to exercise their right to freedom of expression, which includes freedom of artistic creativity, they are also inconsistent with the values that we seek to espouse as a nation through our constitution. We will continue to fight against laws that have no place in our democratic Kenyan society.”

Professor Kimani Njogu, member of the CEWG – second petitioner – said ‘Curtailment of freedom of expression amounts to a violation of Article 33 (1,2) of the Constitution, that promotes freedom of imagination and expression deeply embedded in our national values, supported by the Constitution. Yet in handing down this most disappointing judgment, the Court has ruled against these values.”

“We must respect and uphold the Constitution of Kenya as sacrosanct. Unfortunately, today, the Court has lost an opportunity to protect creatives from overt government censorship and turn the tide by creating a freer space to allow the exchange of ideas in Kenya.”

Back in 2018, Kahiu and the CEWG filed a lawsuit against the Kenya Film Classification Board (KFCB) to challenge the unconstitutionality of the ban against Freedom of Expression and Artistic Freedom guaranteed in the Constitution of Kenya. The film was in September of that year briefly allowed to screen in local cinemas in order to enhance its eligibility for an Oscar nomination in 2019. The film was not selected.

“It is a sad moment and a great insult, not only to the film industry, but to all Kenyans who stand for morality, that a film that glories homosexuality is allowed to be the country’s branding tool abroad,” said the KFCB CEO Ezekiel Mutua in September 2018, expressing his displeasure with the Court’s ruling then.

After the latest ruling, the Kenya Film Classification Board’s CEO took to Twitter with a series of posts under the hashtag #KFCBWinsAgainstGayFilm, by stating that; “We won against Kenya Breweries on beer adverts during the watershed period. We won against betting companies and now we’ve won a landmark case against a consortium of gay sympathizers on the gay film (Rafiki) by Wanuri Kahiu. I thank God and all the lecturers who taught me law!”

The Creative Economic Working Group has vowed to continue to pursue redress through the courts and will be filing an appeal in the Court of Appeal.

‘Rafiki’ tells the story of a romance that blossoms between two young women, Kena (Samantha Mugatsia) and Ziki (Sheila Munyiva). They encourage one another to pursue their wildest dreams in their conservative society, and amid family and political pressures.

In 2019, the film became the country’s first to screen at the Cannes Film Festival, having premiered at the Un Certain Regard section at the 2018 Cannes Film Festival as part of the official selection. International news website Insider recently included the film on its ‘50 best movies of the year’ list. It has screened at over 150 film festivals worldwide and has won more than 20 awards, including six audience choice awards. On Rotten Tomatoes it has a critics score of 94%.