At the recently concluded Usanifu National Creative Economy Conference, organized by the Ministry of Sports, Culture and the Arts, in partnership with the Creative Economy Working Group and Heva Fund, it was quite evident that the creative sector has come of age. For the first time, practitioners in the sector engaged the national government on the economics of creativity. Often seen as disorganized, the sector came through as focused and fully aware of its potential as a ‘business’. It also depicted deep knowledge of the role of art in expressing the human condition, advancing freedom of expression, educating and providing individual enjoyment.
Then the Kenya Film Classification unleashes its ‘ proposals’ in the Films, Stage Plays and Publications Draft Bill, 2016, and the sector is in utter shock! KFCB continues to create the impression that they are amending the Film and Stage Performances Act Cap 222. This is not the case. The Draft Bill seeks to introduce a new repressive law. The form and content of the Draft Bill shows that what we have is actually a new law. Clause 87 of the Draft repeals Cap 222, which establishes KFCB. The Board is reestablished at Clause 4 of the Draft Bill. Surely, KFCB which is a State Corporation has no mandate of spearheading the formulation of a new law.That is the role of the Ministry of Sports, Culture and the Arts. Further, the sector has always been against CAP 222 and argued that it should be repealed. But the process of repealing CAP 222 should be constitutional and in line with good practice in legislative processes.
In the Draft Bill KFCB is trying to expand its mandate in order regulate films, broadcasting content, stage performances, outdoor media, gaming applications, video on demand, print publication and the whole array of subsectors that fall under the cultural and creative industries. The Board is taking over functions of other bodies and seeking to control events in the counties. Apparently, it is not aware that the implementation of policies on art and culture is a devolved function.
The proposed law undermines the Constitution of Kenya.Article 34 of the Constitution is very clear. Freedom and independence of electronic, print and all other types of media is guaranteed and is only limited in the case of propaganda for war, incitement to violence, hate speech and advocacy of hatred. The Constitution bars the State from exercising control over or interfering with any person engaged in broadcasting, production or circulation of publications or dissemination of information by any medium. The State cannot penalize any person for any opinion or view or the content of any broadcast, publication or dissemination. These prohibitions are precisely what KFCB wants to introduce into the creative sector.
The Draft Bill introduces stiff conditions of operation and penalties. For example, all alterations to the text or scenes of a film must first be approved by KFCB. This also applies to all subsectors in the creative sector. You are not permitted to improvise lines on stage! Before you utter those lines, go back to KFCB for approval. You will not develop a gaming application whose text is not approved at every stage. This is contrary to Article 47 of the Constitution which gives every Kenyan the right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action. The requirements of this law will undermine the creative process because they are cumbersome and injurious. They are not facilitative.
The creative sector is not opposed to regulation but would like to see this undertaken within the confines of the Constitution. The sector is also concerned that KFCB has recently been hogging functions assigned to other bodies. Considering that KFCB is established under CAP 222, the only way its functions can be changed is through Parliament. KFCB is using powers it does not have to stifle the operations of the creative industry.
The role of the State should be to facilitate the growth of the sector and not to undermine it through legislation. There is no doubt that even in the absence of a conducive policy and legislative framework the sector is vibrant. It is making critical contributions to economic growth and social development. It not only creates employment opportunities and secures livelihoods, but also drives innovation in other sectors of society such as tourism, agriculture and financial services.
The Ministry of Sports, Culture and the Arts needs to take charge of the creative sector before it is undermined by a State Corporation that is expansionist in attitude and limited in its understanding of the role of creativity, innovation and free expression in economic and social development.