Kenya: Time to Let Go of Archaic Laws That Restrict Artistic Freedom

Photo: Rafiki.
Rafiki movie.
15 September 2018

On Tuesday, September 11, 2018, film maker Wanuri Kahiu and the Creative Working Group went to court to challenge the banning of Rafiki, a film on love and relationships, by the Kenya Film Classification Board (KFCB). In banning the film, KFCB relied on the Films and Stage Plays Act (Cap 222), a piece of legislation passed in 1962 by the colonial government to limit artistic and cultural works in post-colonial Kenya.

This limitation is expressly stated because KFCB, under this Act, has power to 'regulate the creation, broadcasting, possession, distribution and exhibition of films'.

But works of art are best regulated by audience members in terms of their consumption behaviour, not at the level of the artist's imagination. The artist weaves language to tell the story and audience members agree or disagree. The state regulator can provide guidelines on how, when, and where a work of art can be disseminated in order to cater for certain sensitivities. The institution can rate the work in terms of age appropriateness.

The problem occurs when the regulator ventures into artists' aesthetic terrain. Under artistic freedom, the regulator cannot control the artist's imagination.


There is a history to this story of over-reach. In enacting the law on films and stage plays in Kenya, the colonial state viewed artistic expression as inherently subversive and disruptive of the status quo. Because the colonial government sought continuity of its political philosophy, it worried that a vibrant creative sector would disrupt it.

Likimani: National honours list leaves out the right people

The consequence of that legislation has been the restriction of the right to freedom of artistic expression and creativity over the decades. This is likely to continue in earnest if CAP 222 is not comprehensively reviewed or repealed.

Recognising the crucial role of the arts in social transformation, the drafters of the Constitution of Kenya, at Article 33, secured freedom of artistic creativity, alongside academic freedom and the freedom of scientific research. The protection of these freedoms was informed by a history of systematic suppression of the arts and intellectual inquiry and the muting of voices that sought to question power relations and the excesses of the state.

Artistic creativity, very much like academic freedom and scientific research, is driven by a 'curiosity'; an urge to understand the relationship between phenomena that may appear to be disparate and unconnected. This curiosity is an expression of the search for a deeper relationship between human beings and the world. It is driven by the experimentation of ideas about what is possible.

Like the scientist and the academic, the artist seeks to satisfy many societal needs. When we watch movies, listen to music, get engrossed in a painting, or go to theatres, we are in pursuit of something more than entertainment and relaxation. We are seeking a connection; to be more than our current state; to be whole. Our enjoyment of art is derived from the urge to break the shell of individuality and to reach out to the 'other'.


When the artist's curiosity is controlled by the state, the whole society suffers because, as Ernest Fischer tells us in his reflections, art "enables man to comprehend reality, and not only helps him to bear it but increases his determination to make it more human and more worthy of mankind." Artists help us to become better human beings and their right to imagine should not be curtailed or controlled.

Only in circumstances where the freedom of expression degenerates into propaganda for war, incitement to violence, hate speech or advocacy to hatred can it be restricted. Surely, artistic freedom cannot be denied if it aspires to reach out to the diversity of human existence as the Rafiki film seeks to do.

There are those who believe that only the voice of the majority matters. Nothing could be further from the truth. All human beings have a right to be heard. Artists use the raw materials in their immediate environment to create their products. They see, hear, feel and smell their context and then using language represent their interpretation of that context.

The meanings assigned by the artist to elucidate that context need not be those of the majority members of society. Artists are capable of using language and symbols to represent the world of the minority as valuable and worth of attention. We are the richest if we pay attention to the voice of the minority as captured by the artist.

Artists entertain, educate and inform. They celebrate beauty and the interconnectedness of phenomena. But they also contribute to social debates and at times provide counter-discourses to existing power dynamics.

Artistic creativity fertilises cultures and inspires democratic practices. It contests meanings and revisits socio-cultural ideas. It encourages society to revisit its assumption about the world. Using the language of music, painting, film, theatre and literature, the artist can challenge societies to be more inclusive and egalitarian.

In certain situations, artistic expressions and creations are attacked because of the messages they carry and the articulation of symbolic value they may attach to particular situations and ideas. As they interact with their context, artists may challenge dominant assumptions and what may have emerged as the singular 'truth'.

Political, religions, economic, cultural, or moral interests may be invoked in order to restrict the right of the artist to imagine. These restrictions on undermine efforts to create a more humane and inclusive world. It is only through nurturing the imagination of citizens and entrenching freedoms in the national psyche that nations transform themselves.


International instruments have fairly explicit provisions protecting artistic expression and creativity. Some of these are found in the international Convention on Economic, Social and Cultural Rights Article 15(3) in which member states undertake to respect the freedom indispensable for creative activity.

Further, Article 19(2) of the International Convention on Civil and Political Rights (ICCPR) states that the right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds "in the form of art". In addition, the Universal Declaration of Human Rights (UDHR) at Article 27 provides that everyone has the right to 'enjoy the arts'. These instruments are clear on the status of the artist in society.

In my conversion with artists, it is clear that they support restrictions which may be are absolutely necessary, but these must be proportionate and non-discriminatory. In the Kenyan case, those limitations are found in the Constitution.

Artists recognise that their creations often question our lives, perceptions, power relations, social practices and views about each other and the world. They know that expressions sometimes elicit emotive and intellectual responses which may put the artist at risk. But they would like society to understand that the artist's imaginative journey is valuable to social transformative. When this understanding is reached, communities become a critical refuge and sanctuary for the creative sector.

Inclusive societies are deliberately constructed through a contestation of beliefs. We should give ideas room to contest and enrich each other. Without doubt, children should be protected from content that is inappropriate for them.

In Kenya, that is done through a programming code that restricts certain content to watershed hours. But more needs to be done in supporting the development of content for children and mainstreaming arts education so that learners understand how to interpret and critique media and entertainment content from an early age. The route to censorship has never worked but the use of innovative technological and attitudinal interventions has.

In a decaying, corrupt and unequal society, art has a responsibility of depicting the withering away. And when art is truthful and fulfilling its social function, it shows the world as changeable and helps in changing it. It is in this way that art contributes to the creation of a socially just society. It is also for this reason that we must nurture and protect artistic freedom.

Kimani Njogu is a cultural scholar and Director at Twaweza Communications, Nairobi. [email protected]

See What Everyone is Watching

More From: Nation

Don't Miss

AllAfrica publishes around 600 reports a day from more than 140 news organizations and over 500 other institutions and individuals, representing a diversity of positions on every topic. We publish news and views ranging from vigorous opponents of governments to government publications and spokespersons. Publishers named above each report are responsible for their own content, which AllAfrica does not have the legal right to edit or correct.

Articles and commentaries that identify as the publisher are produced or commissioned by AllAfrica. To address comments or complaints, please Contact us.