Artistic freedom is stifled in Kenya

A new report shows that Kenyan art is under attack ostensibly to protect ‘Kenyan values’.

According to the 2021 State of Artistic Freedom Report published by Freemuse, in more than half the cases documented in Kenya in 2020, artistic freedom was stymied by allegations of violating public morality and indecency.

The report observes that legislation regulating rules and procedures in Kenya’s cultural sector have continued to limit freedom of artistic expression under the pretext of ‘protecting minors’ and preserving Kenyan norms and values based on patriarchy and Judeo-Christianity.

In 2020, one of the key obstacles for artistic expression was the Film and Stage Play Acts Cap 222, which requires licensing and authorisation from the Kenya Film Classification Board (KFCB) before any audio-visual content can be created or distributed.

In April, the High Court ruled in the case of ‘Rafiki’ that the 2018 KFCB ban of this LGBTI-themed film was constitutional. The court’s interpretation that Article 33(2) of the Constitution on limitations to freedom of expression is non-exhaustive and gave the KFCB leeway to continue policing in the cultural sector.

On April 13, 2020, KFCB Chief Executive Officer Ezekiel Mutua told Nairobi News: “Such people should not be considered as artists but enemies of society and a threat to the wellbeing of our children. They should not benefit from any government funds.”

In June, the National Assembly discussed amendments to the Film and Stage Plays Act Cap 222 that would enable the KFCB to censor content beyond cinematography, including livestreaming on social media.

Livestreams of music 

In 2020, the KFCB acted as a regulator of a wide range of video material meant for distribution in local cinemas, theatres, and on TV channels and online platforms. Cases documented by Freemuse show that the KFCB targeted videos with songs and livestreams of music performances which it found indecent.

Dr Mutua has been criticised for censoring music and initiating prosecution and sanctions against artists and media outlets.

In mid-August, Dr Mutua called for the arrest of composer George Otieno Adinda, known as Otieno Aloka, following the Facebook livestream of his performance of the song ‘Ochot Madhako’. The KFCB boss declared the lyrics as “obscene,” and likely to “corrupt the morals of children and young people.”

On August 21, Mr Aloka was summoned by the Director of Criminal Investigations in Kisumu to testify, but he was arrested at the police station.

Although the artist accepted the accusations and issued an apology to the KFCB, he was still required to appear before the court. On August 31, he pleaded guilty on two counts: releasing a video without KFCB approval and failing to obtain a licence.

He was handed a Sh120,000 fine or six months imprisonment. Mr Aloka paid the fine.

On April 13, two weeks after the song ‘Utawezana’ premiered on YouTube, Dr Mutua warned that action would be taken against the media for publishing “indecent content under the guise of creativity”.

Freemuse notes that KFCB decisions have also had a chilling effect on the entire music industry.

In addition to the KFCB, non-State actors, including artists themselves, have called for banning artistic content. In November, for example, gospel singer and Christian activist Alex Apoko (known as Ringtone) called on the KFCB to ban Juma Jux and Otile Brown’s song ‘Regina’.

Ringtone said the song was blasphemous towards Christian values because it used the term ‘Messiah’ to refer to a woman and threatened to take legal action against songwriters. “In such an atmosphere, many artists may be prompted to self-censor,” Freemuse warns.

LGBTI art has not been spared. Section 165 of the Penal Code criminalises homosexuality, while section 5(ii) of the KFCB’s Classification Guidelines restricts content which “portrays, encourages, justifies or glorifies perverted or socially unacceptable sex practices,” including homosexuality. Thus, LGBTI art is particularly at risk of censorship.

In February, the KFCB banned the Indian romantic comedy about a gay couple ‘Shubh Mangal Zyada Saavdhan’ (Be extra careful about marriage) from being screened in Kenya. Citing that the institution of the family is sacrosanct, Dr Mutua declared the film impermissible as it contradicted national cultural identity as defined by the Penal Code.

According to the report, the same standards apply for domestic LBGTI films. On April 29, Kenya’s High Court ruled on appeal that the KFCB’s 2018 ban of

‘Rafiki’, a film featuring a love story between two women, was justified and constitutional. The film had been banned “due to its homosexual theme and clear intent to promote lesbianism in Kenya contrary to the law and dominant values of the Kenyans.”

The film’s director Wanuri Kahiu told Freemuse that the High Court ruling would be appealed because the film producers do not believe that “it was reflective or representative of the spirit of the Constitution.”

“We have the right to defend our own Constitution and that is what we are looking to do through this case… That is what I am really anxious about, but I am also excited about the fact that we are able to go to court. That, in itself, is a huge win and there is a movement forward, so we are excited to continue to pursue this case as far as we need to,” Ms Kahiu said.

Online spaces

The Freemuse 2021 report documents 978 acts of violations of artistic freedom in 2020 in 89 countries and online spaces.

“Oppressing artists’ voices has not stopped with the restrictions on cultural events imposed worldwide following the outbreak of the Covid-19 pandemic. On the contrary, to some extent, it intensified,” the report observes.

Seventeen artists were killed in six countries (11 Mexico, 2 Iraq, 1 Belarus, 1 Ethiopia, 1 France, and 1 South Africa), 82 were imprisoned in 20 countries, 133 artists detained in 28 countries, and 107 artists prosecuted in 27 countries.

“It is unimaginable that the record high of prosecution and imprisonment of artists happens in the year when artists and the culture sector have already suffered the loss of their livelihood,” said Dr Srirak Plipat, Freemuse Executive Director. “This year’s report illustrates increasing misuses of blasphemy, anti-terrorism legislation, and Covid-19 measures as pretexts to silence, dissident voices of artists and artworks.”

In 2020, 26 percent of all documented restrictions of artistic freedom took place in Europe, followed by 22 per cent in North and South America, 19 per cent in the Middle East and North Africa, 15 per cent in Asia and the Pacific, 9 per cent in Africa and 9 per cent online. 74 percent of all documented imprisonments of artists concerned criticizing government policies and practices, with 44 percent of all imprisonments happening in the Middle East and North Africa. Politics was the main rationale of 71 per cent of detentions of artists.

According to Freemuse, the Covid-19 pandemic has been weaponised against freedom of expression, with censorship justified by governments globally on the grounds of ‘fighting disinformation,’ silencing 65 artists through detention, prosecution, and imprisonment.

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