#CreativeKE and #Cap222Review

Dear #CreativeKE,

I write to you on the question of the review of the Films and Stage Plays Act, chapter 222 of the laws of Kenya. I have followed some of the debate on the matter and I fear that the Kenya Film Classification Board and its chief executive officer are driving the discourse in an unhealthy direction.

When the KFCB was established, it was established as a censorship board, not a classification board, and its mandate, principally, was to control the exhibition of films that the political leadership could have found sensitive. It performed its mandate not by banning films but by requesting "excisions" of the "cinematographs" that would protect the sensibilities of the political leadership. As part of its mandate, it was also responsible for the licensing of cinemas and the authorisation of film posters, another way in which it could control (on behalf of the political leadership) who could see a film and whether or not any person could find out about a film through its posters.

After 2003, censorship was out and classification was in. But even in that guise, it was becoming apparent that KFCB was long past its "sell by" date; online content and online streaming were near-impossible to regulate and television was and still is the exclusive preserve of the Communications Authority (and its predecessor, the Ministry of Information and Broadcasting). KFCB has no mandate to regulate broadcasters; even in the regulation of the "watershed period", KFCB's role is limited to the classification of films that are intended to be broadcast on television and no more.

The Ministry of Culture, through its Department of Film Services, is responsible for licensing and accrediting foreign and local filmmakers shooting films in Kenya, not the KFCB. It is important to remember that the Department of Film Services does not license or accredit where films may be shot in Kenya. When it comes to the question of where to shoot films, it were local authorities that regulated this activity and, post-2013, county governments, not the KFCB. As an added wrinkle, post-2010, the Fourth Schedule to the Constitution (Part 2, paragraph 4(d)), county governments have powers over cinemas too, which might supersede the KFCB's powers to regulate cinemas under cap. 222.

These are some of the issues that you must consider before engaging with the KFCB as a maker of policy.

The KFCB is caught in a time warp. When it was established and when its mandate was revised between 1997 and 2002, technology underwent a revolution. The advent of the Digital Revolution meant that the producers and dissemination of film no longer had to rely on cinemas or television nor did they need to produce content in Kenya in order for that content to be viewed in Kenya. Many of the tools at their disposal are communications technologies for which the Communications Authority is still trying to regulate effectively. It's jurisdiction over broadcasters and communications companies means that it can regulate where and how these companies operate but it might find it impossible to control what they disseminate.

The current system where the KFCB must review a film before it is shown in cinemas or broadcast on television affects a very small segment of the content available to Kenyans. The majority of content is now produced for dissemination through the internet and other digital tools over which the technology is far ahead of the capacity of regulators to regulate. It is why, for example, that the Constitution provides that the control of pornography is a function of county governments and not the national government, because the county government has a better chance of regulating who can sell content, to whom and where.

An area that should be explored regarding the protection of consumers, including vulnerable consumers such as children, from harmful content is the role of consumer rights organisations (who form part of civil society). A healthy relationship between them and associations of content producers can identify areas of common ground, such as how to identify content that might be harmful and agreeing on guidelines to be used to prevent that content from either being produced or disseminated to the vulnerable. The model used by the United States incorporates ratings by the Motion Picture Association of America and the application of the TV Parental Guidelines. Co-operation between content producers, federal and state regulators, consumer watchdogs and parents' associations has, in the light of US constitutional protections, evolved to provide relevant information to consumers of content to enable them to make informed decisions about what content to expose their children to.

Finally, regarding the question of encouraging investment in content production, again, this is not a role that the KFCB as a film-certification body can effectively perform. Financiers and content-producers look to a return on their investment by reducing overall costs of production and increasing profit margins by lowering or eliminating taxes (or claiming tax rebates). These are policy decisions best made by the National Treasury, the revenue authorities and county governments, with financiers, content producers, exhibitors, broadcasters, distributors and performers as key stakeholders. The Kenya Film Commission, whose mandate includes facilitating investment in film projects is better placed to perform this role than the KFCB.

I believe that a review of cap. 222 is long overdue. The ideal revision would be a separation of film and theatre to begin with; both rely on vastly different technologies and facilities. Second, a simplified regulatory environment would improve regulatory activity; the fewer the regulators, the higher the chance for regulatory compliance. In this case, given the split mandate between national and county governments, focus should be on standards that can be effectively implemented at county level. Third, incentivising investment will mean the reduction of licenses and permit by the elimination of many. A one-stop shop for certification, broadcasting, exhibition and production should be the long-term plan for the sector. Finally, regulatory enforcement should take into account not just the needs of investors but consumers as well and thus the involvement of consumer watchdogs should be incorporated, especially in the area of content rating, classification, broadcast, exhibition and distribution.

I hope these thoughts offer insight.