Film Constitution Rights versus Moral Values

By Dr. David Oginde,

Ezekiel Mutua is at it again! This time round, the energetic CEO of the Kenya Film Classification Board is seeking to control the content of movies delivered through online platforms. Mr. Mutua has proposed amendments to the laws governing classification and licensing of film, stage plays and publications so as to include new media platforms.

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Of particular concern to the Board is the unbridled broadcast of what is has described as immoral content through such channels as YouTube and Netflix. As would be expected, there are already more than murmurs from some quarters, especially those who feel that the board is overstepping its mandate. Advertisers, writers, filmmakers, bloggers and actors have rejected the proposals arguing that they are not only punitive, but go against the spirit of the Constitution. This is not the first time Mutua is at loggerheads with media industry players. Indeed, in some quarters, Mutua is seen to have assumed the role of moral police, taking on major advertisers and brands-such as East African Breweries, Durex and Coca Cola- whose commercials were deemed unfit for human consumption by the Board. Mutua has equally come hard on such activities as Project X, and stopped a supposedly gay speed-dating event in Nairobi. He also banned a film based on the LGBT community in Kenya, and a podcast hosted by a lesbian actor and singer. He has considered these programmes and activities a threat to the country’s moral values and national security. But, is Mutua on the right path or has he gone rogue?

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At the centre of this debate is the place of individual rights vis-à-vis societal values and morality. In this regard is the fundamental right and freedom of expression-in all its forms-embedded in Chapter Four of the Constitution and framed after the US Bill of Rights. It is not lost on many that this is a right that has been long fought for in Kenya. Hence, it must be jealously guarded against any form of erosion that could take us back to the dark old days when Kenyans spoke in whispers even in the safety of their bedrooms.

Yet, there is Chapter Six which appreciates that no society can persist without observing fundamental values and ethics. Indeed, Chapter Six has become an essential gauge for measuring the suitability of any person seeking public office. However, the dilemma that confronts us is what to do when our rights and values clash.

In 1791, the US Constitution was reviewed to include the Bill of Rights, which became known as the First Amendment which soon ring-fenced individual rights such that no court could even begin to listen to any case that appeared to challenge its application-especially on the freedom of expression. This was until 1992 when relatives of three murder victims filed a wrongful death action against Paladin Press, the publishers of a murder manual Hit Man. James Perry, a career criminal was hired by Lawrence Horn to murder Horn’s wife and son-an eight-year old quadriplegic-so as to benefit from a $2million medical malpractice settlement for the injuries that left the boy disabled for life.

Once hired, Perry purchased a copy of Hit Man and relying on its instructions, strangled the young quadriplegic then shot the mother and nurse. A federal trial judge in Maryland threw out the lawsuit on the ground that the claims were ‘barred by the First Amendment as a matter of law.” However, on appeal, the Court of Appeal judges found the book so callous that they ruled in favor of the plaintiffs, holding that the publication of a book may be equivalent to “aiding and abetting” the commission of a crime. Under such circumstances, a publisher “does not enjoy the protection of the First Amendment.”

Thus the Hit Man case became the first successful hit at the First Amendment.

In our case, the fair balance between rights and values seems to be eluding us. Whereas there are many rights advocates who guard against interfering with our Magna Carta, there does not appear to be any credible defenders of Chapter six. That is why the lone voices for values-like that of Mutua-need our robust engagement rather than blanket condemnation. Our rights must be tamed by our values. Otherwise we risk being hit between the eyes by some rouge hit men.

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