Authored By: IVANAH KHASIALA
Strathmore University
Case Name: Wanuri Kahiu & another v CEO, Kenya Film Classification Board, Ezekiel Mutua & 2 others; Article 19 East Africa (Interested Party) & Kenya Christian Professionals Forum (Proposed Interested Party) [2020] eKLR
Court: High Court of Kenya at Nairobi, Constitutional and Human Rights Division
Petition No. : 313 of 2018
Introduction.
The decision in Wanuri Kahiu & another v CEO Kenya Film Classification Board & 2 others [2020] eKLR[1] is a fundamental case in Constitutional Law in Kenya. It concerns the freedoms of expression and artistic creativity. The dispute in the case arose after the Kenya Film Classification Board restricted the exhibition of the film Rafiki, directed by Wanuri Kahiu , on the ground that it promoted themes considered inconsistent with Kenyan Law and cultural values. The petition invited the High Court to examine the constitutional limits of state censorship, the scope of artistic freedom under Article 33 of the Constitution,[2] and the legality of the Board’s powers under the Films and Stage Plays Act. The judgement remains an important reference point in discussions on constitutional rights. Administrative decision-making and the regulation of creative expression in Kenya.
Facts of the Case
The first petitioner, Wanuri Kahiu, is an internationally recognised Kenyan filmmaker who produced and directed the feature film Rafiki. Before production commenced, she complied with the statutory licensing requirements under the Films and Stage Plays Act by submitting the script to the Kenya Film Classification Board (KFCB) for approval. After reviewing the script and requesting minor revisions, the Board granted the necessary filming licence, enabling production to proceed.[3]
Following completion of the film, Kahiu submitted Rafiki to the Board for examination and classification before public exhibition. During the review process, officials of the KFCB informed her that certain scenes and themes were objectionable and directed her to edit or remove them before the film could be classified for public viewing. The Board expressed concern that the film depicted and appeared to normalise same-sex relationships, which it considered inconsistent with Kenyan law, public morality, and cultural values.[4]
After consulting her legal advisers, Kahiu declined to alter the artistic content of the film, maintaining that the requested edits would compromise the integrity of her creative work. Consequently, on 26 April 2018, the KFCB classified the film as “Restricted” and prohibited its exhibition, distribution, or broadcast within Kenya. The Board justified its decision by stating that the film contained classifiable elements relating to homosexuality and lesbianism that allegedly conflicted with Kenyan law and the Board’s statutory mandate to safeguard public morality and protect children from harmful content.[5]
Aggrieved by the restriction, Kahiu and the Creative Economy Working Group filed a constitutional petition challenging both the Board’s decision and several provisions of the Films and Stage Plays Act and the Film Classification Guidelines. They argued that the impugned provisions conferred excessively broad discretionary powers on the Board and unjustifiably limited constitutional rights, particularly the freedoms of expression, artistic creativity, media, and access to information guaranteed by the Constitution of Kenya.
Legal Issues
The High Court identified several key legal questions for determination[6]:
- Whether the High Court had jurisdiction to hear and determine the petition despite the existence of an appeal mechanism under Section 29 of the Films and Stage Plays Act.
- Whether the Films and Stage Plays Act, the Kenya Film Classification Guidelines, and the decision to restrict the film Rafiki violated the petitioners’ constitutional right to freedom of expression and artistic creativity guaranteed under Article 33 of the Constitution.
- Whether the Kenya Film Classification Board acted unlawfully, irrationally, and unfairly in restricting the exhibition of Rafiki, contrary to Article 47 of the Constitution and the Fair Administrative Action Act.
- Whether the petitioners were entitled to the constitutional declarations, remedies, and reliefs sought, including declarations that certain provisions of the Films and Stage Plays Act were unconstitutional.
Arguments Presented
Petitioners’ Arguments
1.The petitioners argued that the Kenya Film Classification Board’s decision amounted to unconstitutional censorship and violated the freedom of expression, artistic creativity, media freedom, and access to information protected under Articles 33, 34, and 35 of the Constitution. They contended that the Board relied on considerations of morality and homosexuality that fall outside the limited grounds upon which Article 33 permits restrictions on freedom of expression.[7]
2.They further submitted that even if a limitation of rights were permissible under Article 24 of the Constitution, the restriction imposed on Rafiki failed the tests of legality, necessity, and proportionality. According to the petitioners, the Board could have classified the film for adult audiences instead of imposing a complete prohibition. They maintained that a total restriction was an excessive interference with artistic freedom.[8]
3.In addition, the petitioners challenged several provisions of the Films and Stage Plays Act and the Film Classification Guidelines as vague, overbroad, and unconstitutional. They argued that these provisions granted the Board excessive discretionary powers without clear standards, creating a system of prior administrative censorship inconsistent with constitutional democracy.
Respondents’ Arguments
1.The respondents maintained that the Kenya Film Classification Board acted strictly within the authority granted by the Films and Stage Plays Act. They argued that the Board is legally mandated to examine, classify, and regulate films before public exhibition in order to protect children, uphold public morality, and preserve Kenya’s cultural values.[9]
2.The respondents further submitted that constitutional rights are not absolute and may be limited under Article 24 where the limitation is reasonable and justifiable. They argued that the restriction imposed on Rafiki pursued legitimate public interests and therefore constituted a lawful exercise of statutory authority. The respondents also contended that the Board had observed the requirements of procedural fairness by informing the petitioner of the objectionable content, giving her an opportunity to amend the film, and providing written reasons after she declined to make the requested edits.[10]
Court’s Reasoning and Analysis
The Court began by addressing the preliminary issue of jurisdiction, observing that jurisdiction is fundamental because a court cannot determine a matter unless it has been properly invoked.[11] It noted that although the High Court possesses broad constitutional jurisdiction under Article 165 of the Constitution, litigants are generally required to exhaust statutory dispute-resolution mechanisms before seeking constitutional remedies.[12]
The Court examined Section 29 of the Films and Stage Plays Act, which provides that any person aggrieved by a decision of the Kenya Film Classification Board may appeal to the relevant Cabinet Minister. In the Court’s view, Parliament had deliberately established this administrative appeal process to resolve disputes arising from licensing and classification decisions. Consequently, the petitioners were expected to pursue this avenue before filing a constitutional petition.[13]
In reaching this conclusion, the Court relied on the doctrine of exhaustion of alternative remedies. It referred to previous judicial decisions affirming that where legislation establishes a specific mechanism for resolving disputes, courts should ordinarily decline to exercise their jurisdiction until that mechanism has been exhausted. The Court found no exceptional circumstances that justified bypassing the statutory appeal procedure.[14]
Having determined that the petition had been filed prematurely, the Court concluded that its constitutional jurisdiction had been improperly invoked. Although the judgment discussed the constitutional framework governing freedom of expression and artistic creativity, the Court declined to undertake a definitive determination of the substantive constitutional challenges because the procedural issue was dispositive.
Nevertheless, the Court acknowledged that Article 33 protects freedom of expression, including artistic creativity, while also recognising that constitutional rights may be subject to lawful limitations under Article 24. The judgment reviewed the competing submissions concerning censorship, public morality, children’s welfare, and the proportionality of restrictions on expression. However, rather than balancing these competing constitutional interests in detail, the Court emphasised that the statutory appeal mechanism should first have been utilised, allowing the administrative process to address the dispute before judicial intervention became necessary.[15]
Accordingly, the Court’s reasoning rested primarily on procedural constitutional principles rather than on a final interpretation of the scope of artistic freedom or the constitutionality of the impugned statutory provisions. The judgment reaffirmed that constitutional litigation should generally remain a remedy of last resort where Parliament has provided an effective alternative process capable of addressing the grievance.
Reference(S):
[1] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR)
[2] Constitution of Kenya 2010, art 33
[3] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), Background [3]
[4] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), Background [3]
[5] [5] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), Background [3]
[6] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [48]
[7] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [16-27]
[8] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [16-27]
[9] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [28-47]
[10] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [28-47]
[11] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [49]
[12] Constitution of Kenya 2010, art 165
[13]Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [52]
[14] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [54-55]
[15] Wanuri Kahiu and another v Chief Executive Officer, Kenya Film Classification Board, Ezekiel Mutua and 2 others; Article 19 East Africa (Interested Party) and Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), [56-69]
