Dr* Mutua's intellectual shell-game

Dr. @EAukot encouraged us not to relent on our efforts to promote moral values in Kenya through stringent content regulations. Yet, on Sunday another distinguished Kenyan lawyer Prof. Makau Mutua wrote some not so flattering piece in the Sunday Standard. @makaumutua referred to our actions as an ignominy, saying that our banning of gay content has caused Kenya international ridicule. If one was to choose between the two, whose view would you uphold in respect to the KFCB work.

 The functions of the Kenya Film Classification Board are set out in section 15 of the Films and Stage Plays Act. It states,

(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;

(b) license and issue certificate to distributors and exhibitors of films.

(2) The Board may from time to time prescribe—

(a) the procedure for application for licensing as a distributor or exhibitor of films; and
(b) guidelines to be applied in the classification of films.

Dr* Mutua has expressed himself on numerous occasions on the need to protect children from harmful content, using this argument as the basis for some of the classification board's edicts against music videos, insurer's billboard ads and animated shows on TV. It is also one of the arguments both he and the Board have advanced in refusing to grant a certificate for a film by a Kenyan filmmaker who has been invited to exhibit her film at the Cannes Film Festival. In Dr* Mutua's and the Board's mind, the "promotion of lesbianism" is an unlawful act and should not be portrayed on film, or if it has been portrayed on film, the film should not be exhibited because it is against Kenya's "national moral values".

The protection of Kenya's "national moral values" is not one of the statutory functions of the Kenya Film Classification Board. And when it comes to the protection of children, as set out in section 15 (1) (a) (iii) of the Act, the Board's function is to give consumer advice for the express purpose of protecting [women and] children from sexual exploitation or degradation in films or on the internet. No reasonable interpretation of this function could lead any reasonable person to conclude that the Board has the power to deny a filmmaker a certificate on the basis of the content of her film.

In fact, section 17 of the Act explicitly provides for the certification of films that are not suitable for children. If Dr* Mutua insists that children, because of their vulnerability, should not be exposed to "lesbianism", he and the Board have authority under section 17 of the Act to classify the film as "unsuitable for children" and to direct that no child should be allowed into any place where the film is being exhibited. That, in my estimation, is the correct interpretation of the Act.

Dr* Mutua has not persuaded us that his interpretation of the powers and functions of the Board under the Films and Stage Plays Act or the Kenya Information and Communications Act, 1998 is the correct one. One way of doing so would have been to prosecute persons he believes have contravened the provisions of law. There is a possible explanation why neither Dr* Mutua nor the Board have asked the Director of Public Prosecutions to do so: Dr* Mutua and his officers know that what they are doing is outside the powers or functions of the Board and they would be exposed to serious legal jeopardy if they ever appeared as witnesses against alleged offenders. So, in order to camouflage their weak stance, Dr* Mutua pits two supposedly opposed views of the Board from two respected jurists and declares that the view from the jurist who supports him is the right one. Sooner or later, Dr* Mutua's intellectual shell-game will be exposed.

*Titles, in Kenya, hide so much, don't they?