Friday, May 19, 2017

From buffoon to iron fist

The long title to the Films and Stage Plays Act (which establishes the Kenya Film Classification Board) states that it is,
An Act of Parliament to provide for controlling the making and exhibition of cinematograph films, for the licensing of stage plays, theatres and cinemas; and for purposes incidental thereto and connected therewith.
We'll get back to it later on.

The functions of the Kenya Film Classification Board are set out in section 15(1),
The functions of the Board shall be to—
(a) regulate the creation, broadcasting, possession, distribution and exhibition of films by—
(i)  examining every film and every poster submitted under this Act for purposes of classification;
(ii)  imposing age restriction on viewership;
(iii) giving consumer advice, having due regard to the protection of women and children against sexual exploitation or degradation in cinematograph films and on the internet...
The functions of the Board relate almost entirely to cinematograph films and posters "intended to be publicly displayed in connection with the film or its exhibition", including giving consumer advice "having due regard to the protection of women and children against sexual exploitation or degradation in cinematograph films and on the internet".

"Child" or "children" are mentioned only five times in the Act; once in relation to the functions of the Board at section 15(1)(a)(iii) and in section 17 in relation to the regulation of films unsuitable for children.

Now, it is possible to declare specific provisions of statutes to be inconsistent with each other, especially if the statutes have been amended on numerous occasions. But in this case, that isn't our primary concern. What we should focus on is whether or not the Board's mandate as claimed by its chief executive and its communications officers includes the protection of children or their welfare in the broadest sense possible and whether it has authority to regulate things like online computer games.

Section 17 is explicit about what the Board has power to do to protect children -- to issue certificates of approval "subject to the condition that no child shall be admitted to the exhibition" of those films. Section 15(1)(a)(iii) is only limited to giving consumer advice. It doesn't impose on the Board a specific power, outside of the power in section 17, to protect children or their welfare. And in no part of the Act are the subjective questions of "harm" or "moral values", in relation to children or anyone, addressed.

The main reason why the law was enacted in the first place was to "control the making and exhibition of cinematograph films". It would do so by issuing certificates of approval after reviewing the films before they were exhibited at cinemas or in other public forums. It would do so through the Kenya Film Classification Board which was formerly known as the Kenya Film Censorship Board. Denial of a certificate of approval would operate as a ban; in every sense a denial of the certificate is a ban on the film. What the Act doesn't provide for is for the Board to issue certificates of approval for computer games -- or for any software material for that matter. In other words, the Board can't ban computer games -- online or offline. And it has no mandate to regulate communications, that is, it has no authority to regulate the internet.

The Board has worked indefatigably to disendear itself from many Kenyans. Its jihad against Coca-Cola is still fresh in our minds as is its ill-judged attempt to bring Google to heel over a gay music video on its streaming service, YouTube. But when it targetted social functions (albeit hedonistically-themed social events) where virginities would be lost or the rainbow colours would be affirmed, the Board was entering a territory so far from its jurisdiction it is important to ask: to what end?

We have seen what happens when state agencies style themselves as the moral police. In almost all scenarios it is usually for the protection of the "vulnerable members of society": women and children. The list of things that are proscribed for the sake of the women and children is usually long including the creation of an enemies' list that usually includes homosexual men and women, transgender humans, political heterodoxies, "free" thinkers, certain kinds of artists, the followers of "strange" or "unusual" religions, atheists and anyone or anything deemed a threat to the safety of women or children (which, at this stage, is synonymous with the safety of the State as personified by the Government and its President).

The Board and its CEO have made simple-minded justifications for their decisions over the past year or two and they have both powered ahead with their moral policing regardless of the protests from civil libertarians. If the Board or the CEO are not stopped, it is almost certain that heterodoxy of whatever nature will not just be considered a moral wrong, but a threat to the security and stability of the State, and will, in turn, justify extraordinary measures to put down. Kenyans are familiar with what happened to their fellowmen when they were accused of "sedition" in the 1980s. The Board and its CEO only know too well. The Board is the thin end of a very fat wedge that will be used to separate Kenyans from the Bill of Rights. Its buffoonish boss shouldn't be underestimated; many buffoons have gone on to become the iron fist of the State.

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