On 11 September 2018, Kahiu and the Creative Economy Working Group – a «consortium of civil society organisations and institutions whose objective is to promote legislative and policy reforms in the creative sectors to promote culture, arts and media in Kenya» [paragraph 2 of the First Judgment] – filed a complaint with the Nairobi High Court. Kahiu requested that the board`s decision to ban and restrict the film be rescinded and allowed to submit the film to Kenya`s Oscars selection committee for review. Kahiu raised the case against board CEO Ezekiel Mutua, the board and the attorney general. She argued that the ban on the film violated her right to freedom of expression, protected by article 33 of the Constitution. The Executive Director of the Board, Mutua, and the Board of Directors argued that the Board acted in accordance with the law and directives by prohibiting the screening of the film in Kenya, that it had not acted with «bad faith, ill will or ill will» and that the restriction on Kahiu`s rights was justified [para. 33]. The Board argued that the list of restrictions in article 33 was not exhaustive because, as in Standard Limited v. Murungaru [2016] eKLR, constitutional provisions must be interpreted holistically and therefore Article 33 must be read in conjunction with Articles 53 and 55. In addition, the Council relied on international conventions to which Kenya is a party, such as the Convention on the Rights of the Child, which oblige Kenya to «ensure that the best interests of the child are a primary consideration» [para.
29]. The Chamber affirmed that the restrictions, since they are prescribed by law, are prescribed by law and referring to the Indian case of Abbas v. The Union of India [1971] AIR 481, 1971 SCR (2) 446, argued that the Act pursued the legitimate aim of protecting the public. The Chamber further held that the restrictions imposed by law were necessary to achieve this legitimate objective. In addition, the board argued that directives were legal acts and that the provisions of the law were neither vague nor too general. In that first judgment, the Court held that the Kahiu case `was not so frivolous as to be closed at this stage` [paragraph 54 of the first judgment] and then analysed the arguments put forward by the parties as to whether the distribution of the film would cause irreparable harm to Kahiu or to the Kenyan population in general. The court noted that «it is clear to this court that the reason for banning the film was because of its gay theme», but expressly stated that it was not necessary to determine the legality or morality of homosexuality [see paragraph 60 of the first judgment]. The Court held that the issue in the present case was whether «an artist or filmmaker, in the exercise of his right to freedom of expression and artistic creation, may make a film with a gay theme» (see paragraph 60 of the first judgment).
The court commented that «one of the reasons for artistic creation is to awaken the conscience of society even on very boring subjects such as homosexuality» [see paragraph 61 of the first judgment]. The Court recognized that «freedom of expression is not reserved only for those who express sublime, noble or simply offensive (sic) sentiments,» as it should «enable individuals to convey and receive views on various matters» [para. 56]. The Court referred to the South African case of Print Media South Africa v. Minister of the Interior 2012 (6) SA 443 (CC), which had stressed the importance of individuals` moral freedom of choice in forming their own opinions on the basis of a free exchange of information and ideas. In particular, with regard to the provisions of the Act that create offences involving strict liability, the Working Group on Creative Industries referred to the case of Kenyan Andare v. Attorney General [2016] eKLR, which stated that «the absence of mens rea creates a broad and arbitrary article and therefore cannot constitute a legal restriction» [para. 23]. In addition, Kahui and the working group asserted that the guidelines lacked the status of law, were broader than necessary, and therefore could not legitimately restrict a constitutional right.
Your email address will be used to notify you when your comment has been reviewed by the moderator and if the author or moderator of the article needs to contact you directly. In considering the Pre-Publication Restrictions Act, the Court referred to the South African case of Midi Television v. Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) and Attorney General v. British Broadcasting Corporation [1981] AC 303 (CA), which stated that «prior restriction of publication, although occasionally necessary in serious cases, constitutes a drastic interference with freedom of expression and should be ordered only where there is a serious risk of serious injustice» (para. 65]. «Today`s victory goes to all women, girls and health care providers who have been treated as criminals for seeking and offering abortion,» said Evelyne Opondo, Senior Regional Director for Africa at the Center for Reproductive Rights. «The court confirmed our position by reiterating that forcing a woman to carry an unwanted pregnancy or request an unsafe abortion is a flagrant violation of her rights to privacy and bodily autonomy. In addition, the still restrictive abortion laws hinder the quality improvement that is possible to protect women with unwanted pregnancies. The decision was rendered in the case of PAK and Salim Mohammed v. Attorney General et al., a case filed in 2020 by the Center for Reproductive Rights and Reproductive Health Network Kenya (RHNK) against government officials in Malindi City and Kilifi County. 4 Esiroyo v.
Esiroyo, [1973] E.A. 388, approved by the Court of Appeal in this case. Google Scholar In applying the third step of the restriction analysis, the Court stated that it had to assess the measures introduced by the law in order to determine whether the restriction was necessary. In the present case, the Court compared the Kenyan measures to those of India, which it described as the «greater democracy» [para. 116], Nigeria, South Africa, the United Kingdom and the United States. The court referred to the U.S. case Times Films Corporation v. Chicago 365 U.S. 43 (1961), which «expressly prohibited the exercise of prior administrative classification of films,» but noted that other U.S. cases – including Near v. Minnesota 283 U.S. 687 – acknowledged that the prohibition of the previous restriction was not absolute [para.
128]. The Court concluded that «it is clear that even the most liberal judiciary, such as that of the United States of America, still advocates some form of prior restriction on the production, distribution and exhibition of motion pictures» [para. 130]. Accordingly, the Court found that the measures of the Act and the measures taken by the Commission to prohibit the film «in a democratic society based on human dignity, equality and freedom» were «reasonable and justified» as they were aimed at achieving the objectives of the Act [para. 131]. The Court concluded that «there is a rational connection between the refusal to grant permission for a film and the pressing and substantial societal need to protect the public from content that is prejudicial to the maintenance of public order, contrary to morality or undesirable in the public interest» [para. 131]. In the present case, the Court clarified that the present case concerned «the question of homosexuality and lesbianism» [para.
131] and considered that the measures were proportionate because the «strongest measures» could be applicable where the objective is particularly important for society [paragraph 131]. The Court considered the purpose and effect of the Act, noting that the Committee was established by statute «to regulate the film industry and ensure professionalism in the industry» and that the purpose was to «ensure that media content disseminated for public consumption is appropriate and in accordance with the laws of the land» [para. 103]. With respect to the Canadian case R v. Oakes (1986) R.I.C.I. 103, the Court considered whether the restriction in the Act pursued a legitimate purpose and concluded that, since section 15 of the Act refers to the «protection of women and children from sexual exploitation or humiliation in motion picture films and on the Internet», the purpose of the Act is to protect adults, and not only children, against harmful film content [para. 112]. In today`s decision, the Court found that private communications between a patient and the health care provider are guaranteed and protected by the Constitution and other enabling legislation, unless the disclosure is authorized by the patient or is in the public interest with restrictions as provided for in the Constitution. The court also found that the police lacked the medical qualifications to determine whether PAH had been able to leave the clinic, that her arrest was inhuman and degrading, and that she should not have been questioned without legal representation.