Nairobi News

With all the hype around the new law proposed by Kenya Film Classification Board chief executive Ezekiel Mutua, everybody is wondering what the fuss is all about.

Sometimes a lot of things get lost in the legalese, so Nairobi News reached out to Kenya’s top showbiz lawyer to break it down.

The revelations are shocking to say the least and many people are afraid that the law gives Mr Mutua the power of God as far as film and content is concerned.

Gerry Gitonga is an Advocate of the High Court of Kenya with Bryant & Associates Advocates specializing in entertainment law and creative industry.

He says: “This law is working against the government’s efforts to grow the creative sector. It is giving a lot of power to the CEO of the KFCB, giving rise to the rumours that this is a power grab. One wonders what the other film regulators in the government think about KFCB’s attempts”

In case you have not read or you have read but you do not understand, here are 25 reasons you should be afraid of the Law.

1. KFCB jumping the gun

KFCB is already calling the document an Act in the title yet the document has not yet been passed by Parliament and signed into law by the president.

2. Government certificate needed to make a film

Under section 21 of the Bill, you would need the government to give you a certificate before you can make a film. If you do not get the certificate from the government, you commit an offence.

3. You will be arrested

If the government decides to come for you for not getting the certificate to make a film, they will arrest and prosecute not only the producer but also every other person engaged in the making of the film. This includes the proprietor, promoter, financier, actor or photographer.

4. Stiff penalties

If found guilty, the penalty is a fine of not less than five hundred thousand shillings or imprisonment for two years, or both.

5. Creates a tedious process

Under section 23, to get the film certificate, you have to submit your script to Ezekiel Mutua before he can give you a certificate to shoot the film. This will include describing to him every scene in the film, and all the texts of all the spoken words in the film.

6. Make Kenya unattractive for international producers

Even Hollywood film producers and any other person seeking to shoot just a part of their film in Kenya will have to go to Ezekiel Mutua and describe the scenes and the words in the intended film to him.

7. Gives KFCB sweeping powers

You can still be denied the certificate even after furnishing all this information.

8. Policing film production, literally

Under section 23, if Mr Mutua decides to give you a filming certificate, he is most likely going to put it as a condition that a police officer of the rank of Inspector or above, or other person appointed for the purpose by the Chief Executive Officer, shall be present at the making of the film. He can also impose such other conditions as he may think fit.

9. Makes movie production unnecessarily expensive

The CEO can also ask you to put up a bond (money or asset) to ensure that you will abide by the terms and conditions of the filming certificate.

10. Censorship

Under section 24, you have to abide by the terms of Mutua’s conditions, and the approved script (scenes and words). If you do not abide by the terms of the conditions or follow the approved script, he will have you and every other person engaged in the making of the film including the producer, the proprietor, the promoter, financier, actor or photographer arrested and prosecuted.

11. Then this

Under section 25, if you want to make alterations to the approved script, you have to make a formal application to Mutua to make the alterations. The application for alteration will include the filming certificate and full details of the alterations you want to make. He has the discretion to allow or reject the application to alter the script.

12. Legalises dictatorship

Under section 26, the powers of the police officer authorised by Mutua to be at the film set are set out. These include the power to intervene to stop the making of specific scenes in the film.

13. A report will be made to Mutua of any such stoppage, and it is only he who will be able to lift the stoppage or confirm it.

14. If you resist the police officer’s stoppage of the filming of scenes, you commit an offence.

15. Mutua’s word will be final

If you go behind the police officer and shoot the scenes he has said should not be shot, you commit an offence that can get the producer, the proprietor, the promoter and the photographer of the film AND EVERY OTHER PERSON engaged in the making of the film arrested and prosecuted.

16. Upon conviction, the penalty in this section is a fine of not less than five million shillings or to imprisonment for a term not exceeding four years or both.

17. You need Mutua’s permission to distribute or exhibit films, video games, commercials. He will rate your films. From experience, he can refuse to rate it and give it an outright ban.

18. In other words, this law will see to it that film content and creativity is censored by the government

a. Right from the time a script is submitted to Mr. Mutua,
b. During actual shooting and
c. At the exhibition stage.

19. Makes Kenya a ‘pariah’ state

Very few countries in the world subject filmmakers to this type of regulation.

20. Under section 39 (1), Zuku, Faiba, Safaricom, Airtel, Orange and all ISPs in Kenya will have the impossible task of –

a. Supplying Mutua with a register that lists ALL Exhibitors and distributors who use their platforms
b. Ensuring that the content to be exhibited or distributed through their platforms is classified by Mutua
c. Ensuring that all programs being streamed through their platforms comply with the classification guidelines of the Board.
d. Reporting all persons maintaining or hosting or distributing all content reasonably suspected to be in violation of his Act.

21. An internet service provider who fails to comply with the provisions of sub-section(1) commits an offense and is liable on conviction to a fine of two million shillings or to a term of imprisonment not exceeding two years or both.

22. From the proposed law, it seems that KFCB is usurping the role of the Communications Authority.

23. The weirdest provision which is also a slap in the face of Kenyans and a real throwback to dictatorship has to be part VII of the Bill which reintroduces regulation of stage plays.

24. Part XI deals with compliance of the Act and introduces what Mr. Mutua calls “Compliance Officers”. You can also call them the “Official Moral Police Force”.

25. Under section 79, Mutua has ensured that he and his Board and Moral Police (aka Compliance Officers) are protected from personal liability for acts done in discharge of their duties under the Act, if they acted in good faith. Because when you are busy infringing on people’s constitutional rights on the basis of morality, all you need is good faith to guide your infringements.