Entertainment17 January 20145 min read

FILM CENSORSHIP AND BANS: THE ROLE OF KENYA FILM CLASSIFICATION BOARD

The internet and social media is buzzing with comments on the recent ban of the American film ‘The Wolf of Wall Street’ by the Kenya Film Classification Board.

Liz Lenjo, Esq.

The internet and social media is buzzing with comments on the recent ban of the American film ‘The Wolf of Wall Street’ by the Kenya Film Classification Board. Before I proceed with the crucial matter at hand, I would like to clarify a confusion that I have noted on social media on the difference in mandates of the Kenya Film Commission and Kenya Film Classification Board.

The Kenya Film Commission is a state corporation under the Ministry of Information and Communication whose mandate and core functions are:

1. To advise the Government and other relevant stakeholders on matters relating to development, coordination, regulation and promotion of the film industry in Kenya;
2. To facilitate the provision of content development, funding and investment for film projects;
3. To market Kenya as a Film destination
4. To facilitate proper systems of film archives in Kenya
5. To facilitate investment in the development of infrastructure in the film industry.

In a nutshell, KFC plays the role of marketing Kenya as a film destination and development of infrastructure and promoting the film industry in Kenya as well as facilitating investments in film projects.

On the other hand, the Kenya Film Classification Board is also a state corporation under the same ministry whose mandate is:

1. To ensure that all films and posters in the country are examined and classified before being displayed, exhibited, hired, sold or broadcast to the public by video libraries, video shows, cinema theaters, video vendors or broadcast stations.
2. To coordinate all issues related to film classification and exhibition in the country.
3. To ensure that certificates of approval are issued for films which have been presented to it for classification
4. To formulate necessary policy guidelines for the government on film exhibition in the county.
5. To carry out and encourage research in classification catalogs are issued to premises that interest of all the stakeholders.
6. To ensure that periodical classification catalogs are issued to premises dealing in videos.
7. To inspect and license cinema shows, video sheathes and video libraries in the country.
8. To ensure that an infringement of any provision in the act is prospected.

Now that I have set the record straight, we proceed with our discussion. Remember back in 2009 when the Kenyan Horror Film “Otto:The Blood Bath” was banned? Some of the reasons cited were that it showed dead bloody characters for too long making it too horrific for the Kenyan audience to view. I found this reason rather funny because the horror films that have been released and viewed prior to the release of Otto are far too many. And some I am sure far more gruesome and more scary than Otto.Some have become so successful and lead to recreation of them through video games which I am sure some of or our children have played. This move by the KFCB in my view has stifled creativity in our film industries and continues to. Wouldn't it be nice to have a Kenyan film resulting to a video game as well?

Since the ban, there has been no attempt that I am aware of by any of our local film productions to create a horror film. If we can create our own and tell our stories our way, we help create employment and generate revenue for ourselves and for the Government.

Fast forward to January 2014, the KFCB now bans the Hollywood film ‘The Wolf of Wall Street”. Why? Because it has scenes of nudity, sex and alcohol. This movie is one of the biggest in the Entertainment world right now. It has been nominated for five Academy Awards, four British Academy Film and Television Awards (BFTAs) and two Golden Globe Awards. In my view just as many have also expressed in social media the ban has just made the movie more attractive and in this day and age of advanced technology the public including our children are likely to find ways and means to watch it. You know what they say, “The forbidden fruit always tastes sweetest.” In addition, how many thousands of films have we watched on TV that contain sex, nudity, alcohol and drug or substance abuse? I would like to know what is so special about this movie and the several others that have been banned.

Under Section 10 of the KFCB 2012 Guidelines, it is stated that KFCB will review its guidelines upon change in lifestyle, public expectations and concerns. This being the 21st Century, it is my humble view and submission that indeed the lifestyle, public expectations and concerns of the Kenyan Public have changed. We are now an exposed society and what was viewed as taboo in the 80s and earlier years is no longer taboo. Things have changed and values too as we exercise our Constitutional right to freedom of choice. What was wrong with the usual rating approach? It should have been rated 18 or Adults Only? I guess it is an answer that can only be given by the KFCB.

This debate has become one of a moral issue; interpreting what is moral and what is not. This is a futile debate because morality varies with individuals as well as with societies. However, what is law is law. All we can do is complain and bicker about it but the law prevails at the end of the day.

What this means for the intellectual property and entertainment realms is that it stifles creativity and creation of IP assets that help in economic growth, hindering creation of employment as well as generation of income. Which is one of the things as a Nation we want to achieve as part of Vision 2030 as well as part of the Millennium Development Goals.

Unfortunately, with violations of laws come penalties. So any person or broadcasting entity that will dare contravene this ban shall:

a) Have their licenses revoked by Communications Commission of Kenya (CCK) under Section 46J of the Kenya Communications (Amendment) Act of 2008.

b) Be liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or both under Section 44 of The Kenya Communications (Broadcasting) Regulations. 2009

What are your views on these penalties? Share your views by commenting on this blog, I would like to hear from you.

Academy Awards
Banning
Censorship
Creativity
Economic growth
entertainment law
Intellectual Property Law
Kenya Communications (Amendment) Act

Written byLiz Lenjo, Esq.

MyIP Legal StudioFounder

Strathmore University Law SchoolAdjunct Faculty

Book Liz to speak on Entertainment → Follow on LinkedIn ↗

Conversation

15 comments

@victornzomo17 January 2014

Timely piece. Allow me to quickly share a few comments and questions. Comments: 1. There's a clear balance which must be struck between film development and regulation of the film industry. 2. With reference to your "Constitutional right to freedom of choice" argument, I disagree. Even where the actions of KFCB are argued to be a limitation of fundamental freedoms in Articles 32, 33 and 34 of the Constitution, such limitation appears to be justifiable under Article 24 of the Constitution. 3. I dont agree with your contention that film bans necessarily stifle creativity. In this regard, I submit to you the case of graffitti which is by definition a criminal offence but nonetheless a popular recognised form of art. Also, the act of banning applies after the work has already been made and published. I do concede that the act of banning may however have an impact on creators' proceeds from their works, although this is also arguable given the forbidden fruit effect. Questions: 1. Can the decision to ban by KFCB be challenged through judicial review as unfair administration action as per Article 47 of the Constitution? 2. If 1 is true, who would have locus standi to challenge such a decision? A film buff, like me? Or Hollywood and/or its representatives?

Clement Paul17 January 2014

The Kenya Film Classification Board has got it wrong on this one. My view is that their approach is more of REACTIONAL than PROACTIVE. Kenya has come of age and due to technology society is changing each and everyday. People have become more informed especially as regards media and what goes on globally in the entertainment world. The film THE WOLF OF WALL STREET is just one among many other movies that shows nudity,use of drugs and violence and I think its ironic that this be the first film to be banned just because it has such themes. If people havent noticed,most programmes being broadcasted today are based on real life events which may involve nudity,drugs and violence.For example,I know many soap operas such Bold and Beautiful and Young and the Restless which show worse themes like INCEST and yet they havent been banned when they used to air on television. This is not to condone such acts with in society but act as an agent to the realization on outcomes that have helped shape what society is today. I also would like to also state something that KFCB should realize,Kenyans dont leave in the dark ages and if they do ban a film,it adds more fuel for people to go look for the movie on line in the internet.I think KFCB should stick to their madate of classifying and categorizing programmes instead of using "a hammer to kill a mosquito'' approach in carrying out its madate.

gakuria said17 January 2014

All movie enthusiasts like me have already watched it.the movie is already doing heavy rotation.gava is grapling feathers...chicken is long gone

Miss Roses17 January 2014

What do I say? This is a very informative post. I knew all the mandated of the KFC as I have done a couple of stories on them in the past. Now as for the Kenya Film Classification Board, I don't really get the reasoning behind the directive. Like I said in my FB, there are many other films that have used the F word a million times like Inglorious Bastards and were shown on big screen. The same way sex and drugs has been a theme in many move is and series, even Breaking Bad, ok even though it didn't air locally. It's just another adult movie with sadistic humour displaying the post jazz era in renewed profligacy. The excessive lifestyle of money, drugs and sex. That said, its not a movie for everyone's taste, however it doesn't deserve the ban. I mean it's up for several Oscars and at the Golden Globes it was actually nominated for Comedy. this shows us that we have a long way to go in terms of liberalization of creativity, especially of local films.

Liz Lenjo17 January 2014

1. In this 21st Century Victor, there is a thin line between regulating and dictating. And looking at the context of film development, how regulation is undertaken influences the trends especially in our developing nation. 2. In so far as creativity is concerned, it is important that imaginative re-creations, SCI-FI and other unrealistic stylistic devices employed to create a motion picture are separated from the reality. I think there is a mix in both at the moment and a difficulty to separate rather obvious. 3. Like I said, it is my humble opinion. In addition, such bans are definitely do not favour our industry players to try something new. I stand corrected but has there been a Kenyan Horror Film released since Otto was banned? Have you not noticed the monotony that is Kenyan TV because what is outside the box in our society is not easily accepted?And why?Because KFCB exercising such bans on local films discourages the creators in the industry. Answer to your questions: 1. In regards to a local film I believe yes, KFCB can and should be challenged through Judicial review. Freedom of expression should be respected. I wish Joseph Kinuthia, the Director of Otto has challenged the KFCB then. I do not understand why the double standards. We also need to accept that times have changed. We are not operating as Islanders. The more we are exposed to the world and its different cultures, the more we assimilate and our values get influenced and change. In the USA, there are cases where the aggrieved parties have litigated to exercise their Constitutional rights. Allow me to share with you a list of banned movies in the US and their developments. http://en.wikipedia.org/wiki/List_of_films_banned_in_the_United_States Regarding this ban and other international movies that have been banned and who can challenged KFCB through JR that is a good question.May be if Civil Society still existed and their was one with a particular bias in this. May be.

Liz Lenjo17 January 2014

I totally agree. We need to stop with this double standard. In my opinion, I think it is possible that KFCB is struggling for relevance. What have we not been exposed to in this day and age? People have access to pornography which is way more explicit than this film.

Liz Lenjo17 January 2014

heh heh so true. Too much too late.

Liz Lenjo17 January 2014

I agree Clement. KFCB should be looking for more innovative and proactive ways to stay relevant. With global exposure their relevance is slowly diminishing.

@victornzomo17 January 2014

In response to point 3, I think the questions you've asked can be answered in one word: "Piracy"!

Liz Lenjo17 January 2014

'Piracy' is that dudu we may have to learn to love if no technological solution is created.

kawiramwirichia17 January 2014

I love the comments you've made about how these bans are affecting the creative industry here - I would have loved to see the Horror film. I certainly hope it would have been good enough to turn into a video game. And true - I'm now eager to watch the Wolf of Wall Street! I don't think I'd have paid it much attention had they not banned it. And I was asking a friend today too, why they couldn't just rate it as "restricted" or "adults only" and left it at that.

Zee Dudhia27 January 2014

Hi Liz :) Thank you for inviting me to read your blog post. I do like the blogs quite a bit and hope to follow you on here.... I have decided to reply to this thread and could only fairly do so if I have watched the movie 'The Wolf of Wall Street' myself. I also hope to network and connect with other colleagues in Kenya, and Africa. I am a believer in Africa and feel confident that we can work together for a better life for us all. So, about the movie, its ban and my interpretation of this, I have highlighted a few areas of interest and possible issue. These all revolve around the ban of the movie in Kenya. What can I relate to you from my experience, knowledge and research so far is that South Africa is unable to ban any type of media due to a clause in our constitution. I had the pleasure of listening to a talk given by our deputy minister: home affairs and she mentioned a few items similar to this thread. I have tried to summarize below: South Africans do not take age restriction seriously; Banning may have positive effects if regulated correctly; and Human development can be negatively affected by media. Let me elaborate on this a bit... Why do we have some serious problems in SA culture and day-to-day living? The answer is not known or confirmed but a few hints are that children are being exposed to 'bad' or age restricted material and this is affecting them negatively and may cause horrific effects. When a baby gets gang raped, or a school kid buries his classmates head in his mom's flower garden, we know there are deep underlying problems. I have played and enjoyed games which are extremely violent and have disturbing images too - these are not suitable for children but yet I also know of some children who possess and play these games. We always tend to 'follow' the West. For example, all the movies and series we love and adore are made in the USA and are about American people. In short, we love these... so much! (myself included). Gossip girl, 2 broke girls, Friends, etc... When we watch and enjoy these forms of media, very few of us actually analyze them to understand the morals, values, and forms of peer pressure which they 'force' upon us. Take, The Wolf of Wall Street, amazing filmed. I enjoyed it so much, really, I would watch it again. But ... do not be swayed by the happy ending of him earning an 'honest' living. Have a look at the values which are being portrayed, as acceptable to gain wealth. Stealing other peoples money, telling lies to them, manipulating the public, smuggling money, extra marital affairs, abuse of severe drugs, driving under the influence, prostitution, breaking the law, bribery and corruption (I have not listed them all). I look at my own government and people and imagine that we all have this 'I want big cash now' understanding of life. Probably fueling malpractice, fraud and corruption. With such a large wealth gap and many other issues, we ask, who is to blame? Probably no one but ourselves? With this in mind, I do think it is fair that KFCB banned the film (officially) in Kenya. We can always find copies, download them, buy them from the black market, etc - but those are issues for other government departments and not necessarily KFCB. Imagine, if we, as Africans, built our own film and media industry which was entertaining and also portrayed positive family values of honesty, and participating in the economy as a law abiding citizen. That would be great as we can help to spread our culture, and strengthen the identity we have as Africans. Are we sheep? Who will follow the Chinese or the Americans? This for me, is something of a bigger issue whereby the USA prints free money in the form of USD and buys South African Gold, Platinum and other African resources with their free and endless supply of money. I do feel that USA supremacy and self-exclusion of themselves from the rules (international law, etc) is itself something to 'boycott'. To end off, I want to concl

samuel Mutugi29 January 2014

Again i dont see how KFB move stifles creativity.I mean be creative.But within the confines no no nudity Sex and violence.If one must be creative along those line then I think the National geographics,the Discovery channels are pure jokes IMO.

Camilla8 April 2014

I really enjoyed and applaud how this article was researched and how it was presented. To some extent, I am of the view that creativity is vital for a country to continually develop and extreme censorship may stifle creativity. However, having experienced what a 'free' western country defines as creativity, i.e. allowing everyone to do, say and act however they feel, has led to my understanding and support for censorship where necessary. The film 'Wolf of Wall Street' was very entertaining though the most powerful messages to me were the immoral actions and inferences that were portrayed. Moreover, these inferences were laced with views of success and wealth that are unsustainable and exclusive. As a movie it was entertaining, well directed and executed, but in view of morality and the social impact on society it can be damaging especially if such films and its views are permitted. For instance, in the United States, there is freedom of speech and what follows is permission to air and distribute films that affect morality in the society. The country is creative, and the entertainment industry contributes significantly to the economic growth of the country. When you consider the social impact however, the story is grim. People can get shot in movies, people can get shot for overtaking, youth are committing suicide, drug abuse is an epidemic and education despite it being free and accessible is for the elite. There seems to have been a compromise between wealth through creativity and sanity and moral values in the western world. I believe that KFCB made a right move with a net positive long term impact. It may limit the themes of films created in Kenya, but true creativity I believe should not rely on the status quo, it should create a new way of doing things that can still capture and retain peoples interest. There, I believe in the long term the creatives will find a way around the legal restrictions. I would love to see Kenya and Africa develop and grow but I hope that we will have our values in tact and the growth will be sustainable and authentic.

wuhu28 August 2014

Dear Zee, You seem to have a good head on your shoulders right there.Thanks for your contribution.I couldn't agree with you more.I'm a Kenyan currently living in S.A. and all I can say is our children are going to the dogs.I'm not a parent yet but I constantly wonder where I'll hide my kids when I get them. Values do not change, they remain constant-it's the person who changes.Good remains good in the 80s as it will remain in the next century.We need to guard what we see,watch, listen to - garbage in garbage out.Kenya and the rest of the world need to protect their children from harmful material.