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MPUTHIA: Can law be used to ‘regulate’ morals?



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Can law be used to ‘regulate’ morals?

The creative sector needs freedoms guaranteed under the law to grow. PHOTO | FOTOSEARCH 

Last week, there was a spat between the Kenya Film Classification Board (KCFB) chief executive officer and a leading entertainer over a “raunchy show”.

The CEO used quite strong language in condemning the show while the entertainer responded in an equally abrasive manner. Social media was the battle zone between the two warring parties.

I found the entire incident to be unfortunate, prompting me to write this piece today. It is interesting that the KCFB often finds itself on the receiving end of a lot of criticism and I found it important to highlight some of its key mandates.

The KCFB is a State agency that has a wide mandate in the filming and theatre industries in Kenya. For a start, it is illegal to broadcast a film without procuring a licence from the agency. The process of applying for the document includes making full disclosures over the content of the film, and if any amendments are to be done, they must be approved.

The board is mandated with classifying films as “adults only,” unsuitable for below 16 or unsuitable for below 10. The penalty for broadcasting an illegal film is a fine of Sh100,000 or five years’ imprisonment.

But the most interesting provision I found in the law is that a licensing officer has discretion (wide powers) to deny or allow a licence and that the board shall not approve films that offend decency and public order.

Having set out KCFB mandate, the question then is how far it can go in executing its mandate? The first thing to note is that the constitutional freedom of expression guarantees persons freedom of artistic creativity as well as the freedom to receive information or ideas. The only proviso limiting this freedom is if the expression is used in an inciteful manner such as hate speech, war and violence.

The constitution is the supreme law of the land. Freedom of expression is crucial to the originality and quality of artistic work. It can also be argued that for the creative industry to grow, there must be necessary freedoms guaranteed to the sector.

In Petition 313 of 2018, a case in which the KCFB was a party, the issue of freedom of expression was considered in allowing some conservatory orders against KCFB.

In executing its role, the KCFB finds itself in the awkward position of a rising conflict between morality and law. It is a grey area indeed, for at times something legal may be immoral and something immoral may not be legal.

Morality is shaped by a lot of factors including cultural and religious backgrounds, which all make the issue almost a personal one. Institutional culture, including morality, may be shaped by the leadership.

However in most cases, especially when new leadership takes over, a new institutional culture may emerge.

For example, if a new CEO with a different set of morals takes over KCFB, will this affect its image and if so, will it be positive or negative?

It has been very difficult to control “morals “because what is immoral to one person is perfectly moral to another. However there are times when law can be used to shape morals, for example a sexual offences law.

It may be an exercise in futility for a state agency to act as the “moral police” due to diversity. The KCFB may find itself caught in the middle as to how far it can go in enforcing “good morals.”