Sobriety needed on proposed films Bill

SATURDAY OCTOBER 29 2016

The Kenya Film Classification Board Chair Ezekiel Mutua addresses the media at his Uchumi House office in Nairobi on February 23, 2016. A new Bill attempts to expand the mandate of the KFCB beyond films and stage plays. PHOTO | SALATON NJAU | NATION MEDIA GROUP

In Summary

· On the recently published Film, Stage Plays and Publications Bill 2016, we are seeing the routine debacle in law making in Kenya, where laws precede policy.

· This Bill seeks to legitimise the regulatory overreach that the KFCB has engaged in since late 2015 under the guise of enforcing the Programming Code for free to air radio and TV broadcasters.

The current debate on the manner and approach to regulation of the film industry in Kenya is part of the wider challenges of media and content regulation, especially with the onset of internet-based production.

While the debate in Kenya is largely focused on the raft measures including the development of a Bill and the manner the Kenya Film and Classification Board (KFCB) has handled the regulation of the film industry, globally, media, content and film regulation is being dealt with more cautiously.

We should allow a robust debate around issues instead of the personalised attacks on the KFCB chief executive Ezekiel Mutua, for Mr Mutua only speaks on behalf of the board.

On the recently published Film, Stage Plays and Publications Bill 2016, we are seeing the routine debacle in law making in Kenya, where laws precede policy.

It is from the Presidential Task force on parastatals reforms, which is yet to be legalised, that the Film, Stage Plays and Publications Bill 2016 is premised.

Curiously, it does not recognise the existence of the Kenya Films Commission Policy or the Department of Films in the ministry of Information.

BOARD MANDATE

From the discussions, the Bill is meant to repeal the Film and Stage plays Act cap 222, following the recommendation of the Presidential task force that wants the Kenya Film Commission to be restructured and its regulatory function transferred to KFCB, which will be renamed Kenya Film Regulatory Service.

The KFC will be renamed Kenya Film Development Service.

The Bill attempts to expand the mandate of the KFCB beyond films and stage plays.

The drafters ignore the task force recommendation on the establishment of a film regulatory service and instead create an amorphous regulator of almost every form of media available today including classification of all broadcast content including commercials, infomercials, documentaries, interviews, programme promotions, programme listings, community service announcements and station identifications, gaming applications, video on demand, over the top services, outdoor advertising and print publications.

In effect the Bill seeks expand the mandate of the board to include things that are not in any way related to the regulation of film production and distribution.

This Bill seeks to legitimise the regulatory overreach that the KFCB has engaged in since late 2015 under the guise of enforcing the Programming Code for free to air radio and TV broadcasters.

BILL DETAILS

This is an unlawful exercises since subsidiary legislation cannot purport to amend a principle Act of Parliament.

The Bill grants the KFCB chief executive, an ex-officio member of the board, powers to unilaterally perform certain functions that would require the input of the entire board.

According to the Bill, the chief executive makes decisions on applications for filming certificates; imposes alterations and additions to films; approves or rejects the alterations and additions; and approves film posters.

These functions are supposed to be carried out by the board.

The Bill retains Section 9 of Cap 222 which provides for the monitoring and controlling of film production by the police, a colonial-era film censorship practice.

The Bill imposes a raft of excessive penalties for various offences. The maximum penalty under Cap 222 is Sh100,000 and/or between two months to five years’ imprisonment.

Under the Bill, for example, distributing or exhibiting an unclassified film or visual media earns a maximum penalty of Sh2 million and/or five years’ imprisonment.

The corresponding offence under the Copyright Act imposes a maximum fine of Sh400,000 and/or two years’ imprisonment.

Under the Bill, the KFCB is granted extended powers to classify printed publications as either objectionable or not objectionable. Without a definition of “publication” the assumption is that the term will apply to every form of printed material that is published.

Instead of personalised attacks, let the industry engage at policy level.

Victor Bwire works at the Media Council of Kenya. Views expressed here are personal