Could KFCB soon be using Laws to steer us Morally

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The KCFB is a State agency that has a wide mandate in the filming and theatre industries in Kenya. For a start, it is illegal to broadcast a film without procuring a licence from the agency. The process of applying for the document includes making full disclosures over the content of the film, and if any amendments are to be done, they must be approved.

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The board is mandated with classifying films as “adults only,” unsuitable for below 16 or unsuitable for below 10. The penalty for broadcasting an illegal film is a fine of Sh100,000 or five years’ imprisonment. But the most interesting provision I found in the law is that a licensing officer has discretion (wide powers) to deny or allow a licence and that the board shall not approve films that offend decency and public order.

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Having set out KCFB mandate, the question then is how far it can go in executing its mandate? The first thing to note is that the constitutional freedom of expression guarantees persons freedom of artistic creativity as well as the freedom to receive information or ideas. The only proviso limiting this freedom is if the expression is used in an inciteful manner such as hate speech, war and violence.

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In Petition 313 of 2018, a case in which the KCFB was a party, the issue of freedom of expression was considered in allowing some conservatory orders against KCFB. In executing its role, the KCFB finds itself in the awkward position of a rising conflict between morality and law. It is a grey area indeed, for at times something legal may be immoral and something immoral may not be legal. Morality is shaped by a lot of factors including cultural and religious backgrounds, which all make the issue almost a personal one. Institutional culture, including morality, may be shaped by the leadership.

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However in most cases, especially when new leadership takes over, a new institutional culture may emerge.

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