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Freedom of expression in Kenya suffered a blow last Wednesday, when\nJustice J. A. Makau of the High Court, dismissed a petition filed against the\nKenya Film Classification Board for its decision to ban the award winning movie\nRafiki<\/em>.<\/p>\n\n\n\n Rafiki<\/em>, is a story of romance\nthat blossoms\nbetween two young women despite cultural and legal barriers. Same\nsex relations are criminalized in Kenya, while cultural and religious sentiments\non the subject are strong, resulting in discrimination and violence against\nLGBT persons. <\/p>\n\n\n\n Wanuri Kahiu, the director and Creative Economy Working Group filed Petition\nNo. 313 of 2018 in the High Court at Nairobi, challenging a ban by the Board\nissued on 28th<\/sup> April, 2018 against distribution, exhibition,\nbroadcast and possession of the movie, on the basis that it contained a gay theme\n\u2018contrary to the law, culture and moral values of the Kenyan people\u2019.<\/p>\n\n\n\n In the judgment delivered on 29th<\/sup> Aril, 2020, yet to be\npublished, the court held that the ban does not violate the artistic freedom of\nexpression, but instead protects the society from moral decay, according to the\nStar newspaper.<\/p>\n\n\n\n The judge also in dismissing the petition, held that the jurisdiction of\nthe court had been invoked prematurely.<\/p>\n\n\n\n The judgement by Justice Makau despites an earlier\nwell-reasoned ruling, by Justice W. A. Okwany in the same petition in which she\nexpressed a contrary view in her ruling of 21st<\/sup> September, 2018, while\nallowing the movie to be screened in the country for 7 days. She observed that\nthe film should not be restricted merely because it depicts a gay theme, because\none of the reasons for artistic creativity is to stir the society\u2019s conscience\neven on very vexing topics such as homosexuality. She decried censorship noting:<\/p>\n\n\n\n \u2026 I am not convinced that Kenya is such a weak\nsociety whose moral foundation will be shaken by simply watching a film\ndepicting gay theme \u2026. Having regard to the above cited case and the\nfacts set out in this case I am of the humble view that the importance of the\nrights and freedom of expression in a democratic state such as ours cannot be\ngainsaid or taken for granted. There are Kenyans who paid the ultimate\nprice so that we can enjoy the freedoms that are now enshrined in our\nConstitution. In this regard the duty of this court is to give effect to\nthe enjoyment of the fundamental rights and freedoms to the fullest\nextent. In doing so the court ought to consider and carefully scrutinize\nany action that tends to undermine these hard earned freedom<\/em><\/strong>s\u2019<\/em><\/p>\n\n\n\n On the question of jurisdiction the Judge had held:\n\u2018\u2026the matter before the court is\u2026 the constitutionality\nof not only the said ban but also the sections of the Act that were applied in\neffecting the said ban \u2026 I find that this court has wide jurisdiction to\ndeal with the instant petition as it raises questions of violation\/ threat of\nviolation of rights under the Constitution\u2019.<\/em><\/strong><\/p>\n\n\n\n The final judgement however missed the opportunity\nto reiterate the right to access court guaranteed under Article 22 of the Kenyan\nConstitution and also shunned the court\u2019s duty to subject the decision of the\nBoard to the Constitutional standards and principles established under Article 10\nand 11, as opposed to subjective ones applied by the Board in imposing the ban.<\/p>\n\n\n\n Owing to the judgement, unfortunately, distribution,\nexhibition, broadcast and possession in Kenya of this powerful love movie Rafiki<\/em> is still banned.<\/p>\n\n\n\n Despite the ruling preventing the film from being\nshown in Kenya, RAFIKI<\/em> is still available to the public. Fans\nof the film and supporters of global LGBTQ equality can watch RAFIKI<\/em> online\non Amazon Prime. Watch (or watch again) and share with friends and supporters,\nto share this important story. Watching and sharing are two small ways LGBTQ\npeople and allies can support LGBTQ storytelling in Kenya from their own homes.
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\nWatch RAFIKI online on Amazon Prime here!<\/a><\/em>
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\nBursting with the colorful street style and music of Nairobi\u2019s vibrant youth\nculture, RAFIKI<\/em> is a tender love story between two young women\nin a country that still criminalizes homosexuality. Kena and Ziki have long\nbeen told that \u201cgood Kenyan girls become good Kenyan wives\u201d – but they yearn\nfor something more. Despite the political rivalry between their families, the\ngirls encourage each other to pursue their dreams in a conservative society.\nWhen love blossoms between them, Kena and Ziki must choose between happiness\nand safety.<\/p>\n\n\n\n