The High Court of Kenya has temporarily lifted the ban on Rafiki. Judge Wilfrida Okwany delivered the ruling on 21 September 2018, stating “I am not convinced that Kenya is such a weak society that its moral foundation will be shaken by seeing such a film.”
Rafiki is a film with a “clear intent to promote lesbianism in Kenya”.
At least that’s what Ezekiel Mutua, CEO of the Kenya Film Classification Board (KFCB), stated when announcing a nationwide ban against Rafiki earlier this year.
Director Wanuri Kahiu would argue there’s a bit more nuance to the film. “More than anything, I wanted to tell a love story. It’s been really important for me to tell more love stories coming from the continent,” Kahiu said in an interview with Kiva Reardon of the Toronto International Film Festival (TIFF).
Adapted from Monica Arac de Nyeko’s short story Jambula Tree, Rafiki (meaning “friend” in Swahili) is the story of two young women who fall in love, and the choice they must make “between happiness and safety.”
The film has been a hot topic of conversation since it premiered at Cannes, not least because it was the first Kenyan film to screen at the prestigious festival.
Rafiki’s colourful cinematography, sharp all-female soundtrack, and talented cast are just a few of the elements viewers are raving about. And for good reason. Its genre – a term Kahiu has coined as “Afrobubblegum” – is challenging Western audiences’ expectations of stories coming from Africa.
“We’re so used to narratives out of Africa being about war, poverty and devastation,” Kahiu said in a TED Talk. “Where’s the fun?” For Kahiu, Afroubblegum is necessary if we want “art that captures the full range of human experiences to tell the stories of Africa.”
Afrobubblegum or not, the Kenya Film Classification Board appears to have a one-dimensional view of Rafiki as a film with a “homosexual theme” that it deems “contrary to the law.”
The law in question is Section 162 of Kenya’s penal code, which criminalises “carnal knowledge against the order of nature”. According to Human Rights Watch (HRW), this is “generally understood as consensual sex between men, and ‘indecent practices between males.'” Those charged under this law could face up to 14 years in prison.
But, as Kahiu said at a Q&A following the screening of Rafiki at the Toronto International Film Festival (TIFF), the colonial-era law is so general that it could be interpreted in almost any way.
“The act of carnal knowledge against the order of nature… could be anything that is not procreating,” she told the audience at TIFF. “If you’re not trying to have a baby, you could, in theory, be arrested.”
To Kahiu, the ban of her film on the basis of this law is unjustified and – hopefully – only temporary.
“We’re taking the government to court,” she announced to the audience at TIFF, who broke out into applause. “We’re challenging them on the basis of constitutional rights, because as actors we have the right to freedom of expression.”
On 14 September, The Guardian reported that Kahiu had filed a lawsuit against Kenya Film Classification Board chief Ezekiel Mutua, as well as Kenya’s attorney general.
On 15 September, The East African cited Kahiu as saying that the ban had cost her revenue, sponsorship, and her standing in the film industry. “I am afraid that the act and regulations under which Rafiki was banned are a threat to freedom of artistic creativity and freedom of the media,” The East African quotes Wahiu as saying in an affidavit.
Kahiu is not the only one challenging the government over its stance on homosexuality.
Earlier this year, Kenya’s High Court began hearing a case that could once and for all put an end to the law against “carnal knowledge against the order of nature.”
The case was originally brought forward in 2016 by Kenya’s National Gay and Lesbian Human Rights Commission (NGLHRC), led by their Executive Director and lawyer Eric Gitari. But it was only earlier this year that the High Court began hearing the case.
The constitutional challenge argues Sections 162 and 165 of the penal code contravene Constitutional rights to equality, privacy, and human dignity.
Those in support of the legal challenge are hopeful. Earlier this year, another lawsuit filed by Gitari and the NGLHRC was successful. Human Rights Watch reports that on 22 March 2018, a Court of Appeal in Mombasa ruled that conducting forced anal examinations on people accused of same-sex relations is unconstitutional.
The ruling was deemed a victory for LGBTQI+ advocates in Kenya and beyond.
Kahiu has faith that a similar victory is imminent in her case against the Kenya Film Classification Board.
To the filmmaker, the case is not about wanting all Kenyans to see Rafiki. Rather, it is about empowering them to choose.
“There’s lots of people who want to see it and there’s lots of people who don’t. It’s also their right not to see it,” Kahiu told the audience at TIFF.
“What we’re saying is: if you have the ability as an over-18-year-old to vote for a president, you can have the right to decide whether or not you can watch a film.”
To read more articles from the IFEX network on the gender and sexual diversity dimensions of the right to freedom of expression and information, check out our hub page.
“What we’re saying is: if you have the ability as an over-18-year-old to vote for a president, you can have the right to decide whether or not you can watch a film.”
