Is depicting homosexuality a crime? Supreme Court hears Rafiki case

Is homosexuality outlawed in Kenya, and is it the same as carnal knowledge against nature, which is prohibited and criminalized by Section 162 of the Penal Code?

At the same time, is the depiction of homosexuality in a film a promotion of the same or just an artistic expression?

These two questions posed by the Supreme Court Judges during the hearing over the ban of the Rafiki movie will settle the long-standing differences over whether the Wanuri Kahiu artistic work should have been watched in Kenya.

Wanuri’s lawyers, Prof Githu Muigai and Guto Mogere told Supreme Court Judges Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, William Ouko and Mohammed Warsame that, just like other movies depicting violence and robbery, Rafiki was just a form of artistry and not a campaign in favour of same sex relationships.

Prof Githu submitted first. He said that the Court of Appeal’s application and interpretation of a 1533 Buggery Act, a colonial law relic, which was adopted in Kenya to prohibit unnatural acts against the order of nature, was erroneous, as it does not mean homosexuality.

The professor of law was of the view that the Court of Appeal went ahead to legislate in its judgment, instead of finding that the law that gave Kenya Films and Classification Board (KFCB) powers to restrict what can be watched by Kenyans was vague.

 He said that the lower court failed to appreciate that Wanuri enjoyed freedom of expression and artistic creativity guaranteed under Article 33 (2) of the Constitution.

According to Githu, ideas are not crimes and actualization in a movie, book, song, drawings do not amount to criminal acts.

He said that the board had ordered Wanuri to remove the ending, which was a love song and, in its place, have a remorseful one, which she declined. He insisted that there was nowhere under the law that KFCB was granted powers to impose and force its ideas on an artist or a film-maker.

“ The court creates a permission regime which is not permissible under the law. The Court of Appeal did not interpret the Constitution; it legislated by finding that promotion of homosexuality can be limited.  A depiction of a robbery in a movie is not a promotion of robbery,” argued Githu.

Wanuri’s arguments were supported by Creative Economy Working Group. The lobby’s lawyers Lay Odanga and Joshua Malidzo faulted Justices Wanjiru Karanja and Francis Tuiyott for failing to find that Section 16 of the Films and Stage Plays Act of 1962 was too vague and wide as it gave the board powers to ban anything deemed to be prejudicial to the maintenance of public order, or offending decency and undesirable to public interest.

“No one knows what they mean or how to apply it. As you see, the Court of Appeal finds they are too wide but tried to cure the same by saying KFCB can censure films promoting lesbianism. It is not for the court to interpret the law in a way that reconstructs the law. A vague law is no law at all,” argued Malidzo.

 On the other hand, KFBC and the Attorney General urged the Supreme Court to dismiss the case.

KFCB lawyer Andrew Mwango told the court that allowing Rafiki to be watched in the country would amount to promoting crimes such as child pornography.

Mwango claimed that Wanuri’s film was a homosexuality campaign.

 Asked by Justice Ouko whether KFCB had in place ways of regulating video-on-demand movies such as Netflix, he said that there were regulations in parliament for consideration.

“If you watch our screens on our screens today, there are movies that are more explicit and graphic than Rafiki?  Do you say it is encouraging immorality and not educative? Would it have been cured by rating? Than to ban?” asked Ouko.

The lawyer said the regulation requires self-classification and that KFCB has the powers to require a movie to be pulled down.

He insisted that the movie does encourage homosexuality. “ I had the benefit of watching it in court,” replied Mwango, adding that in the social media era, the regulation is not audited.

“ We have seen that the presence of social media, has had a negative effect on persons ... it is virtually impossible to stop the circulation once it is released,” he said.

Seinten Leitoro, for the AG argued that the age restriction could have been an appeal ground which Wainuri could have approached the ICT Cabinet Secretary.

“ The CS has the powers to review the restrictions placed on the film,” she said, adding that there is no clear definition of homosexuality in the country. According to her, there are references to it in the Penal Code and Marriage Act.

“ A straightforward definition of homosexuality is not present in our laws as we speak,” said Leitoro.

Odanga, on the other hand said that homosexuality has no definition. He added that as an identity of sexual identification, it is not itself outlawed.

“ Homosexuality as an identity or orientation is not itself specific conduct criminalized under Section 162 and 165 of the Penal Code,” he said.