ArticlesSeptember 26, 20181 CommentsKituo Cha Sheria


“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness”

The brief facts of the case are that Ms. Wanuri Kahiu, the writer, director and co-producer of Rafiki sued KFCB and its boss Ezekiel Mutua for banning the film Rafiki. This film was banned for promoting lesbianism and homosexuality in Kenya.. Rafiki is a love story about two teenage girls who develop a romantic relationship which is opposed to their community and family. The High Court temporarily lifted the ban to allow the film to be considered for an award at the Oscars. This has however been received with mixed feelings. Mr. Mutua for instance termed the film a tragedy and a shame that cannot define the Kenyan culture.  He insisted that gayism was not Kenya’s way of life.

KCPF which is a Christian organization has also had something to say. They contended that 80% of Kenya’s population is Christian. They further state that it is a matter of family which is defined and protected by the State. In reference to the Constitution, they insist that homosexuality or gayism is illegal.

These submissions can however be contrasted with the reality. As much as Kenya claims to be moral and Christian, the traffic on Rafiki film after the ban was temporarily lifted is amazing. The film has also apparently done so well hence attracting the nomination for the award. This article seeks to find out whether the ban of the film Rafiki is moral or hypocritical?

Morality and the Law

One common definition of morality is principles concerning the distinction of what is right and wrong or bad and good. The: “goodness” or “badness” of behaviour boils down to its acceptability. In other words, morality is something amorphous that is only defined by a people. Law on the other hand is a derivative of political authority. The Law which is enforced by the State is but a command from a sovereign. There are therefore points of convergence and divergence between these two.  Plato, for example, explains the idea of true justice which is closer to morality, as distinguished from justice which is apparently merely dependant on human reason. Law therefore can be moral or even be immoral

There is however need to go back a bit. If morality is this amorphous construct that the society develop. Can a society be wrong on the “rightness” of behaviour? The answer is yes. Societies have been wrong. Slavery and slave trade were immoral yet tolerated. Societies that discriminate on women and persons with disabilities are immoral yet there are few people who recognized so. Is there a morality of one? There is a valid argument to be made on a morality of one based on one’s conscience. This is to say that the society may see behaviour as “bad and an individual see it as “good” and it is still fine

Kenya has a country has a number of normative factors. These include: religion, culture and even the law. In an African society culture plays a big role in determining morality. The irony is what Kenyans refers to as African culture are distinct depending on ethnic group. In addition to these, there are some “moral” African cultures that have been stated to be repugnant to justice and morality. This means that Mr. Mutua holy African culture and the way of life he claims to ascribe to-as he trashes other people- may not stand the test of morality. He need not hide behind African culture so that he can be intolerant to ideas. This is simply foolish and infringes on other people’s rights. As much morality is a subject in this case, it is as subjective as it comes

Role of Religion

Religion has a big role in Kenya’s moral choices. This is however very subjective. The Constitution of Kenya recognizes this and hence article 32. This gives citizens freedom and the right to worship belief and practice religion. It is however important to note that article 32 does not include imposing ones belief or morality to other people. As much as the church as a right to be enjoined in any suit in Kenya, where do they get the right to impose their morality to the public? The wisdom of article 8 of the Constitution of Kenya has the implication that religion is a choice and as a citizen one may decide not to be guided by religion  hence a secular society.

Kenyans have therefore always chosen when to be guided by religion and when not to. The church for instance was against the promulgation of the Constitution (2010) and 65% Of the Kenyan voter, majority Christians went against the church. A huge part of the church has always been against family planning and the use of contraceptives; this too they have relatively lost.  They have always been accused of being part of tribalism and partisan politics in Kenya. Is it therefore hypocritical to say that Kenyans are 80% Christians and they are influenced as so? Or is it a lie the church needs to tell so as to   remain relevant as they did in the 15th century.  Claiming that 80% of Kenyans are Christians and therefore they have a say on issues of family and the protection of it is a classic miss direction. The church in Kenya has very little to say about family. They advocate for monogamy (Hyde v Hyde (1866)) while the law has metamophosized to allow for polygamy, single parent families etc. What moral authority does the church therefore have to kill creativity in the name protection of the family with regards to the rafiki film? It may be wise to let people be.  Those who want to subscribe to the way of Christianity need to be allowed to, those who don’t. Let them be free.

The Law and Human Rights Perspective

As stated in the facts of the case, the point of contention is on family protection and values of the society in Kenya. The Kenya film board has banned the film Rafiki as it promotes lesbianism and homosexuality. This they contend is illegal and immoral. The Constitution of Kenya, article 45 deals with the rights to marry and family. Article 45 (2) of the law prohibits gay marriages. Marriage in Kenya is for persons of opposite sex with consents. Article 45(1) advocate for protection of the family. The Penal Code (cap 63) of the laws of Kenya speaks of unnatural acts Section 163 read together with 164 gives a maximum sentence of 14 years imprisonment for anyone convicted of unnatural acts. This is therefore only possible if one considers gayism unnatural but how does one enforce this?  The Sexual offences Act (Cap 64) does not s however recognize gay activities as asexual offences.

It is therefore clear that gayism is illegal in Kenya. Unlike South Africa, Kenya does not recognize such marriages. Sexual orientation is not in the laws. But what has this got to do with the Rafiki film? The film is a piece of art that perhaps shows the realities of the Kenyan society.  In other words, the fact that gayism is illegal and perhaps immoral in Kenya, does not mean that gay people are not in Kenya.. There may be more people within the scope of LGBT than the Kenyan church or righteous society would like to admit. How does banning films or music films that does not hurt anyone but portray what happens in te society help? The hypocrisy by the KFCB however becomes clear as the board bans Kenyan films yet the same themes are carried by the foreign films that Kenyans still watch. As much as the KFCB may feel that they are preserving culture, they are in fact acting unconstitutionally. The Constitution of Kenya 2010 through article 33 elaborates on the freedom of expression to include freedom of artistic creativity. Article 28 is also quite elaborate on the human dignity and perhaps, human dignity should be respected regardless of sexual orientation

A gifted writer, who decides to give you the soft side of a dictator, should never be condemned for that is the reality of society. There is nothing immoral or illegal about that. It may not be pleasing to everybody, but it is wrong to pretend and clothe intolerance in  the question of morality.


As much as it is clear that Kenya is not ready for the LGBT rights. This does not mean that Kenyans should neither pretend that these people exist in the society nor they don’t matter. Societies gradually change and it is the films and creative art that help to shape conversations. In all these, there is need to have an open mind and stop intolerance in the name of moraliy or religion.


Ouma Kizito Ajuong


All Comments

  • Sweeva

    January 25, 2019 Reply

    Thank you so much for opening and shedding light on this discussion. I watched this film in a foreign country and the discussion after was very interesting as we tried to analyse the reasoning and thought behind banning the film and putting the Kenyan society in perspective. This has really narrowed down and made clear all that was talked about.

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