The controversy surrounding the notice that filmmakers in Kenya must obtain a filming license on or before May 28, 2018 is still brewing, with KFCB and its chair Dr. Ezekiel Mutua continuing to issue confused statements on the scope and nature of the notice; in particular on who the notice actually affects. All other things aside, the controversy itself is a clear indication that Films and Stage Play Act, Chapter 222, generally known as as CAP 222, MUST be repealed. This is because the controversy in itself is a strong sign that film stakeholders in the country are not happy with the legal framework that seek to guide the practice of filmmaking in the country.
In addition to the controversy that the film licensing debate has elicited, examination of CAP 222 reveal two other shortcomings that law has, shortcomings that have hindered the growth and prosperity of the country’s film industry. These two shortcomings are:
- The requirement that a filmmaker must obtain a license for every film to be made
- The requirement that a filmmaker must produce the script of the film at the time of applying for a license
CAP 222 and the need to obtain a license for every single film
A filmmaker in Kenya is required to obtain a license for every single film he or she plans to produce. This is in accordance to Section 4 subsection 1 of CAP 222 that reads:
Subject to the provisions of section 10 of this Act, no film shall be made within Kenya for public exhibition or sale either within or outside Kenya except under and in accordance with the terms and conditions of a filming licence issued by the licensing officer under this Part.
To further clarify that the license is for a single film, Section 5 subsection 1 provides that:
Every application for a filming licence shall be made to the licensing officer in writing and shall be accompanied by a full description of the scenes in, and the full text of the spoken parts (if any) of, the entire film which is to be made, notwithstanding that part of the film is made or to be made outside Kenya
Currently, the license fees are issued to registered Film Agents who must pay Kshs 12,000 a year, or to filmmakers associated with a film agent. When a Film Agent or a filmmaker wants to make a short film (films that are 40 or less minutes long), a documentary, or even still photoshoot, the filmmaker is required to pay Kshs 5,000 for the license. For films that are longer than 40 minutes, generally referred to as full feature films, the filmmaker will have to part with Kshs 15,000 for the license. To add salt to injury, the licensing body has put a further requirement that a filmmaker must pay an additional Kshs 1,000 for every day he or she is out in the field shooting.
This licensing model is absurd. To put this in perspective, imagine a manufacturer of anything (cars, textiles, building materials, anything) who must pay a license for every item he or she manufacturers. That is, after registering your manufacturing company, paying for all business and operation licenses and permits, you are still required to pay a product license for every single product that is made. There would be no business that would thrive under such conditions – and that’s why the film industry cannot thrive under the archaic, barbaric and punitive CAP 222.
The film industry bigwigs such as Eugene Mbugua and George Gachara agree, and the two refer to CAP 222 as a draconian law that is punitive, hostile and prohibitive. “The licensing and taxation required of filmmakers before shooting in Kenya is so prohibitive so much so that it’s cheaper to build a mini Kenya in another country for a movie scene”, said Eugene Mbugua as cited by Quartz in their article, Kenya is readying to set itself up on the global film stage. In the same article, George Gachara is quoted as saying that “to shoot in Kenya, both local and foreign filmmakers are expected to incorporate a company, register as an agent with the film department, acquire a license, submit the script for regulatory appraisal, strictly state the number of days and locations of the shoot, and then pay a daily rate to use them” thus creating a “hostile environment that deters many”.
CAP 222 requires filmmakers to submit scripts for regulatory appraisal
If the licensing module wasn’t bad enough, here comes the need for filmmakers to submit scripts at the licensing stage. I have tried to research online on Film Laws and Regulations of California (the capital of Hollywood), Film Laws and Regulations of Canada and a few other places but I didn’t find any that requires filmmakers to submit a script for licensing purposes (see CAP 222 Section 5 subsection 1 quoted above). CAP 222 is so strict on the script such that if the filmmaker were to make changes to the script, then those changes must be availed to the licensing body before filming can commence. This strictness is provided in Section 7 subsection 1 as quoted below:
Where it is desired to make any material alteration or addition to the text, synopsis or scenes of a film which is to be made and in respect of which a filming licence has been issued, the holder of the licence shall apply in writing to the licensing officer for permission to make the alteration or addition, and the application shall be accompanied by the filming licence and by particulars of the proposed alterations and additions and, if the alterations or additions are in a language other than English, and the licensing officer so requires, a translation thereof into English, certified to the satisfaction of the licensing officer.
A film producer knows that a script will always change, even at the last minute of shooting. For example, this guy of Film Riot had to discard his entire script after visiting the location and realising that the script cannot work with the location he had. As a film Director, including during the production of Innocent Ruth that won the best short film at the 2018 Kenya Schools and Colleges Drama and Film Festival, I have always changed dialogue, deleted and/or added entire scenes, during Principal Photography. These changes are normally orchestrated by unforeseen location, time, crew, cast, equipment and/or props circumstances. Are filmmakers therefore expected to halt production if script changes are necessary simply because CAP 222 requires them to notify the licensing body of changes in the script?
Secondly, there shouldn’t be a reason to submit scripts during licensing when the same film will be submitted to the same body after production but now for classification. The reason Rafiki was banned in Kenya is not because it wasn’t licensed, but because during classification, KFCB asked the producers to delete certain scenes from the film. The producers however refused to delete those scenes, opting to instead submit the film to International Film Awards.
It is problematic that KFCB doesn’t see the shortcomings of CAP 222
The hostility inherent in CAP 222 is clear, but Kenya Film Classification Board doesn’t want to accept this fact. After writing the article on how the module for film licensing in Kenya is archaic, barbaric and punitive, Dr. Ezekiel Mutua took to Facebook, as screenshot by Sakaja Johnson, to boast of how CAP 222 is a perfect law, even going ahead to refute my article that termed Kenya’s film licensing module as archaic.
This update is currently missing on Ezekiel Mutua’s timeline, but an update with a similar intent (praise of Kenya’s Film Regulation Framework) is in the update embedded below:
The fact that Dr. Ezekiel Mutua and KFCB can’t see the problems clearly inherent in CAP 222 must bother every sane Kenyan; and that sane Kenyan MUST rise to protect the promising but stagnant film industry in Kenya.