BAKE statement on KFCB’s attempts to license online video content

The Bloggers Association of Kenya (BAKE) wishes to register its concern at the public notice on requirements for filming in Kenya and penalties for non-compliance as issued by the Kenya Film and Classification Board (KFCB). On Social Media platforms, the Board and the CEO Dr. Ezekiel Mutua have affirmed that “Any film made in Kenya for public exhibition or sale MUST be licensed.” They have gone ahead to assert that video content produced for the Internet has to be licensed, a directive which we find not anchored in any law.

BAKE is concerned that the CEO and the Board are misusing their legal mandate to classify films in the country. “We raise the concern not only following the directive, but also in general conduct of the CEO’s statements especially on Social Media seeking to control morals in the country”, said James Wamathai, Director Partnerships.

The Association notes that KFCB is guided by among others, the Constitution, Kenya Information and Communication Act and the Films and Stage Plays Act.

Article 259 provides the manner in which the Constitution is to be interpreted. It requires that the Constitution should be interpreted in a manner that promotes its purposes, values and principles, advances the rule of law, human rights and fundamental freedoms in the Bill of Rights, and that contributes to good governance.

It should be appreciated that whereas the Boards need to classify, which they have interpreted as banning films and content meant for public consumption, their purview is not unfettered. In reading and interpreting their mandate, it is not solely about values but also principles, the rule of law and human rights. The Constitution and laws are not read and interpreted in isolation.

In addition, guided by the Kenya Information and Communication Act which also guides their work, we wish to remind them that you cannot purport to guide, license and ban content that appears on a platform and platforms that the Act and the requisite institutions do not license.

For the avoidance of doubt, in Petition no 149 of 2015, Justice Mumbi Ngugi was categorical one cannot purport to control a platform not provided for licensing as may be specified in the Act. In her words “…Facebook and other Social Media do not have licenses to operate telecommunication system or to provide telecommunication as may be specified in the license.”

The learned Judge was authoritative that “laws may not grant officials largely unfettered discretion to use their power as they wish, nor may laws be so vaguely worded as to lead reasonable people to differ fundamentally over their extension.”

“As an institution that promotes online content creators, we have written to Dr. Mutua to provide clarification on the public notice. We intend on seeking judicial interpretation not only on the public notice but also on the interpretation of what constitutes a film. The definition as currently made in the Act and erroneously and selfishly interpreted by the Board and the CEO cannot continue unchallenged,” added Mr. Wamathai.

We raise this issue because many online content creators, including vloggers and photographers produce content frequently, as often as media houses to news and analysis, it is impractical, unreasonable and unworkable to be seeking licenses every episode.

Kenyans have taken to the digital landscape including Social Media to inform, communicate, analyze and create opportunities like employment and enjoy rights and freedoms as espoused in the Constitution. These rights and freedoms are to be promoted and enhanced, not gagged.

Thank you.