Kenyan High Court’s Rafiki Judgment fails to Apply Proportionality Analysis

The Rafiki case concerns the alleged violation of the right to freedom of expression due to the censorship of a film with scenes depicting women in a same-sex relationship. Upholding the censorship, the Kenyan High Court failed to apply a proportionality analysis – – sanctioning an unjustified limitation of the right to freedom of expression where there was a less restrictive means to achieve its purpose.

The facts of this case are that the Petitioners submitted a film called “Rafiki” to the Kenya Film Classification Board (KFCB) for examination and rating. The KFCB directed the Petitioner to edit the film, remove scenes of ‘homosexuality’ and ‘lesbianism’ and resubmit it for classification. The KFCB argued that the scenes violated Kenyan law. The Petitioners refused to do so. In response, the KFCB classified the film as restricted and banned its exhibition and distribution in Kenya. The Petitioner sued the KFCB for violating the right to freedom of expression under Article 33 of the Kenyan Constitution. They also challenged the legality of the Films and Stage Plays Act as well as the Kenya Film Guidelines 2012.

According to the Petitioners, the right to freedom of expression, could only be limited under Article 24, which requires that all limitations on rights must be provided by law, serve a legitimate aim and be proportionate and strictly necessary in an open and democratic society as well as Article 33 (2) of the Kenyan Constitution, which prohibits speech that exalts propaganda for war, incitement to violence, hate speech, advocacy for hatred that is grounded on discrimination as well as ethnic incitement, the vilification of others or incitement to cause harm. The Petitioner argued that the KFCB’s decision did not meet the standard set in Articles 24 and 33(2).

KFCB argued that it initially wanted to classify the film as (Adults only 18) but classified it as “restricted” due to the petitioner’s failure to heed to KFCB’s recommendation. The petitioners argued that the film ban failed to meet the proportionality test as there were other means through which children could be protected without necessarily limiting the right to freedom of expression. For example, the Petitioner suggested that an age restriction of “18” would have been a proportionate means to realise their stated purpose.

Rejecting these arguments, the court noted that freedom of expression is not a non-derogable right. Further, it held that Article 33(2) was not exhaustive in its prescription of the limitations on free speech. According to the court, a holistic interpretation of the constitution was needed to fully comprehend the limitations imposed by the Constitution on free speech. It further stated that Article 33 should be read in consonance with Article 53, on the best interests of the child and Article 55(d) on the protection of the youth from harmful cultural practices.

The court further stated that the ban pursued a legitimate aim. Citing R v. Oakes, it stated that measures employed to limit rights must be high to ensure that objectives that are discordant with a free and democratic society do not gain protection. This threshold, according to the court, was met by Sections 16(4) and 17 of the Film and Stage Plays Act which disapprove of content that offends decency or is undesirable in the public interest and protect children from harmful, indecent, age-inappropriate content respectively.

As to whether the limitation was necessary in a democratic society, the court cited Near v. Minnesota, stating that there were exceptions to the prior restraint doctrine and that the adoption of a system of prior administrative classification as a means of limiting freedom of expression was legal even though the onus of proving that the limitation fell within the scope of exceptions lay with the State. The court, therefore, rejected the Petitioner’s argument that the use of prior classification was a form of censorship and a violation of the right of expression that was unnecessary in a democratic society. The court also indicated that it was cognizant of the fact that Kenyan societal values and culture are different from those of other countries and that the margin of appreciation doctrine granted a State leeway in determining what constitutes a pressing social need that deems it necessary to limit a right or freedom.

While purporting to apply a proportionality analysis, the court failed to consider whether the movie ban was the least restrictive means for the KFCB to achieve its aims. Thus, the reference to R v. Oakes seems to have been a selective citation of this authority – neglecting the proportionality test advanced therein. It, therefore, failed to consider whether the measure taken by KFCB was the least restrictive measure available. More broadly, the acceptance of the KFCB’s stated aims is emblematic of a larger issue –  the failure to recognise and protect LGBT rights in Kenya.