At an animated meeting on Tuesday people from the film industry and related creative activities rejected a draft Bill emanating from the Film Classification Board.

Not least of the interesting themes of the meeting was the insistence on the ‘sovreignty of the people’. Our so-called ‘leaders’ may forget (or want to forget) the Constitution, but it is alive and well in the hearts of Kenyans. It was the sort of meeting that gives one confidence that it won’t be possible to roll back all the gains of the Constitution.

Another theme was history. We were reminded that ‘even under the old Constitution’ excessive use of the Film and Stage Plays Act was held unconstitutional. What was this a reference to? In 2002,the Minister of Information issued a stern statement. It was addressed to ‘broadcasting networks, Cinema theatres, production houses, Advertising agents and all those concerned’. And it warned that ‘Films (including Television commercials, Television dramas, comics, documentaries and features) for Public exhibition, screening or broadcast, whether foreign or locally produced are required to obtain a Certificate of approval from the Film Licensing officer and the Kenya Film Censorship Board prior to being exhibited.’

The Nation Media took it to court. Guess who its lawyer was! No less than our current Attorney-General, Githu Muigai, wearing his human rights hat, you might say. Do you still have that hat, somewhere, Mr AG?

The court said the Minister’s statement was beyond his power under the Act. When it said ‘film’ it did not mean television. And though the Constitution allowed rights to be limited if that was ‘reasonably required in the interest of defence, public safety, public order, public morality or public health’, none of these applied here.

The court went further and said the Act itself was in part unconstitutional. It allowed the Film Classification Board to refuse to approve anything which in its own opinion might affect public order or offend decency, or be ‘for any other reason…undesirable in the public interest.’ This gave too much power to the Board just based on ‘its opinion’. And, what was more, the Act did not give the person who applied for a licence to show a film any right to be given a chance to put his or her arguments before being denied the licence. The court said ‘This is an outrage and an affront to democracy.’

Another problem was that anyone who was refused a certificate of approval for a film could appeal—to the same Minister who issued the Gazette notice. Not the sort of independent body that even the old Constitution required.

Finally, the court said, that any limit on rights must satisfy certain tests in order to be constitutional. It said not only must there be a valid purpose for the limitation on rights, but if the law that limits rights won’t even achieve the purpose, the law is not justified—it is unconstitutional. To be valid a law that limits rights —even though it is for a good purpose—must limit rights as little as possible. No sledgehammers to crack nuts!

To take an example. Everyone would agree that children probably ought not to see certain sorts of films. Exactly what sort of films is not necessarily equally agreed. Someone in a position to make law might be tempted to ban all films that children below ten ought not to see. Such law would limit everyone’s rights and be unconstitutional unless it was a film that no-one should be allowed to see. It would reduces us all to ten year old children as far as our film going-possibilities are concerned.

Many societies would deal with the problem by a classification system. This might be a compulsory one (it is against the law to allow a child to see this film) or a matter of guidance (parents are advised that this film is considered unsuitable for children). Children might be forbidden to see some films unless accompanied by an adult. A system might also be designed to inform parents and others why a film is thought unsuitable (violence, cruelty, bad language, explicit sex or drug use etc.).There must be balance between what is intended to be achieved, and the cost in terms of limiting people’s rights—the rights of those who make films and the rights of those who want to watch them.

The ideas used in the 2002 case are now in our Constitution—in Article 24. The idea of putting them there is not just to give the courts a yardstick for measuring limitations on rights. It was to make law makers and law proposers think before they enact. For the same reason, no law passed since the Constitution can limit right at all unless it is clearly stated in the law that it is intended to limit rights and the limits are clearly expressed.

The provisions of the Film and Stage Plays Act that the court said were unconstitutional still seem to be there. This is an indication of how seriously government takes court decisions (and human rights).

Clearly some change in the law is needed. But there is a problem with how Kenya goes about making law. A rational way to do it would be to ask ‘Do we have a problem?’ We need to understand what our problem is, what the causes of the problem are, including what the current law is, before we go on to prepare a new law. In order to ensure that any new law is effective we need to think about different ways of achieving the purpose. This will also help us avoid laws that limit rights more than necessary, and are therefore unconstitutional.

Those who are proposing a change in the law, whether government or some other sector, should feel obliged to think through the issues in this way. And then they should be prepared to set down in writing an analysis of the problem and the possible solutions with evaluations of the possible solutions. And at this stage the writing should not be in the form of a draft law.

Premature production of a draft law presents only one solution. This prevents other people, including the public who have a right to participate in decision making, knowing what alternatives have been considered, which rejected and why. A draft law does not have reasons. It does not include costs (financial, human or societal). A draft law can hide weak thinking. And it is hard to make radical changes and embrace new solutions once the stage of drafting law has been reached. And while lawyers may find law easy to read (and even for lawyers not all law is easy), most people do not enjoy reading law. The form will obscure the substance. And if the law is not well drafted (as all too much Kenyan law is not) even lawyers may find it hard to understand what is intended.

Tuesday’s meeting ended on this sort of note: let’s go back to the drawing board. Think (in a participatory way) about what the issues are, what we want to achieve and how they can be achieved including whether the law is at all the best way to do it.

Finally, we should remember the importance of the right or rights involved. We are talking of people’s livelihoods. And of people’s ability to be themselves. But above all we are talking about freedom of expression. Nothing worth doing in society can be done without the expression of ideas. Those ideas may be unpopular in some quarters at some times. But the right to express one’s ideas, one’s beliefs, one’s suggestions, one’s hopes and one’s fears are absolutely central to the realities of the vision of the Constitution and to the sovereignty of the people.

Jill Cotrell Ghai

The author is a director of Katiba Institute