3, 2, 1: Action as Film Regulation Moves to ICT Ministry

Rafiki Movie Kenya Image Twitter Dc6K6pSW4AEDmmr

Last month, the President signed Executive Order No. 1 of 2018 on the Organisation of Government which, inter alia, assigned functions and institutions among Ministries and State Departments. One interesting new change in the structure of the Government is that Kenya Film Classification Board (KFCB) and Kenya Film Commission (KFC) are now listed under the State Department for Broadcasting and Telecommunications in the ICT Ministry. In addition the Ministry’s functions now includes overall responsibility for policies on film development in Kenya and the development of the country’s film industry.

This may all seem like a mundane bureaucratic detail but in reality it may well represent a fundamental shift in Kenya’s approach to the development of the creative economy and the important contribution of the film industry. But like every good story, there is a plot twist: the only thing that KFCB and KFC seem to agree on is that they are better off separate than together. Lately, the two lead film agencies have been at loggerheads (see video clips here and here) over how best the film industry should be regulated for the development of this vital pillar of the creative and cultural industries.

The major fault line of the KFC-KFCB rift appears to be two-fold. Firstly, the extent to which film regulation should include outright banning of films in Kenya. This issue came to fore in the recent controversy surrounding ‘Rafiki’ (pictured above) which became the first Kenyan film to feature at the Cannes film festival this year. Secondly, the scope of KFCB’s regulatory mandate with regard to licensing of filming in Kenya under the Films and Stage Plays Act Chapter 222 Laws of Kenya.

Kenya Film Commission Tweet Twitter Classification Board Mandate Overlap Conflict May 2018

This issue of regulation was sparked off by a public notice issued by KFCB on requirements for filming in Kenya and penalties for non-compliance. The notice, pictured below, reads in part that: “Any film made in Kenya for public exhibition or sale MUST be licensed.”

Kenya Film Classification Board Public Notice Film and Stage Plays Act License Filming Exhibition

As readers may know, the Films and Stage Plays Act is a relic of the post-colonial era and successive government efforts to modernise this legislation have not borne any fruit. Clearly, it is in the interest of the film industry that the legal framework undergirding the film sector be rationalised and harmonised, replacing the status quo with a more dynamic, comprehensive, responsive and progressive legislation that will better meet the needs of the film industry and align it to the Constitution of Kenya, 2010.

At the county level, the film legislation must be aligned with the Fourth Schedule of the Constitution of Kenya, 2010, and the County Governments Act, 2012 and provide for a county promotion framework, the development of infrastructure by and in the counties and for inventories of film resources across the counties.

In the 2013 Report of the Presidential Taskforce on Parastatal Reforms (discussed previously on this blog here), there was a recommendation that: ‘the Kenya Film Commission be restructured with an objective of transferring the regulatory function to Kenya Film Classification Board to become the regulator for the film industry and be renamed Kenya Film Regulatory Service. With the transfer of the regulatory function Kenya Film Commission should be renamed Kenya Film Development Service.’ This recommendation appears to leave out the Department of Film Services (DFS) which, alongside KFC and KFCB, is a key institution in Kenya’s film regulatory landscape.

In 2015, a draft version of the National Film Policy, which is available here, appeared to advocate for all three institutions, KFC, KFCB and DFS to continue operating alongside each other in the development and regulation of the film industry in Kenya.  The draft also recommended the clarifying and unbundling of county functions in consultation with the county governments, the Ministry and the relevant institutions as well as capacity building for county governments to enable them discharge their roles.

In 2016, KFCB presented a draft legislative proposal to stakeholders with the aim of kick-starting the review of the Act. A copy of KFCB’s proposed Film, Stage Plays and Publications Act of 2016 is available here. This draft was so widely condemned that KFCB was forced to publicly withdraw it and plan for wider consultations with stakeholder representatives. For a taste of the acrimony created by the KFCB draft bill, check out the scathing critique by one of the emerging IP experts and this blogger’s colleague, Liz Lenjo posted here.

Recently, an online petition has surfaced (available here) calling for the disbandment of KFCB along with the repeal of the Films and Stage Plays Act. With close to 6,000 signatures, this petition also advocates for the merger of KFC, DFS and KFCB into one entity. Given the tumultuous recent past, it may be necessary for the Ministry of ICT to strongly consider this proposal of creating a single state corporation for the licensing, classification and marketing of film in Kenya.

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