Overzealous and moralistic film board boss a threat to freedom

Kenyans on social media have once again been treated to Ezekiel Mutua’s moralistic gusto and show of overzealous regulation.

In a Facebook post on August 28, the Kenya Films and Classification Board CEO ranted about an alleged lesbian TV show, The Spread, according to a misleading article posted on a popular Kenyan blog. Mr Mutua claims the show’s hosts are lesbians, erroneously cites the law and the Constitution, and proceeds to exhibit further hate and prudish opinion.

It is noteworthy that The Spread is a podcast and not a TV show. This brings to the fore the issue of the board’s mandate. First, as its name suggests, the board’s work begins and ends with classifying films.

However, the board, through Mr Mutua, has seen it fit to venture into other forms of media, including online content and in this case, a podcast, which, simply put, is a radio programme uploaded on the internet.

A keen reading of Cap 222 reveals that the board’s mandate does not expand to covering anything beyond films and stage plays. Notably, the Films and Stage Plays Act that birthed the board commenced on October 1, 1963, obviously before any person could have imagined the internet. It is clearly a legislation that is out of touch with the reality of technological advancements.

Second, Mr Mutua’s threat to investigate the matter seems to imply that freedom of expression vis-a-vis podcasts can be limited and regulated by the film board.

He should be reminded that Article 33 (1) (b) of the Constitution of Kenya provides for freedom of artistic creativity. It cannot try to regulate artistic expression, even if it is controversial, without considering Article 33(2), 34(1) and Article 24 that stipulate that freedom of expression and freedom of the media do not extend to hate speech, incitement to violence, advocacy for hatred, propaganda for war, and the vilification of others, and when and how fundamental rights can be legitimately limited.

PLAYING TO THE PUBLIC GALLERY

Content featured in the three available podcasts of The Spread does not belong to any of the areas mentioned above. In fact, I opine that they should be treated as educational.

The Constitution also guarantees that the State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication, or the dissemination of information by any medium, or penalise any person for any opinion or view or the content of any broadcast publication or dissemination.

The commitment to freedom of imagination and expression is deeply embedded in our national psyche and the government and/or any regulative body should never have the authority to dictate to the citizens what they may or may not listen to, read, or watch.

Third, by playing to the public gallery and furthering conversation about the misleading article, Mr Mutua has engaged in libel by promoting a particular harmful tone while discussing a publication on social media. On these grounds, there are possibilities for a civil suit for defamation by the show’s hosts against Mr Mutua.

It is important to note that lesbianism is an emotive issue that many people do not understand. Therefore, misleading statements on this topic by public figures such as Mr Mutua spreads hatred against homosexuals. His Facebook post has not only misled the public about The Spread and the board’s mandate, it has also exposed the show’s hosts to harassment and possibly danger based on the false assumption that they are lesbians.

Besides stating that Section 181 of the Code prohibits the distribution and exhibition of indecent content, Mr Mutua asserted that lesbianism is prohibited by the laws of Kenya since Article 45 of the Constitution defines marriage as a union between two people of the opposite sex. He has conflated same-sex attraction to marriage, yet the article does not mention sexual conduct.

Mr Mutua is obviously overstepping his mandate as his interpretation of Article 45 is nothing more than non-legal banter.

Mr Ongere works for Article 19 Eastern Africa. [email protected].