Regulating Kenyan’s Film Industry

PREMISE
The film industry represents a major instrument for social, cultural, political and economic development. Kenia’s film industry has an enormous potential in terms of wealth and job creation, and could be an important source of economic growth in the country. At the same time, the sector still faces several challenges (i.e. the taxation regime or the weak enforcement of copyright laws): for these reasons, the government is considering intervening on the regulatory framework in order to sustain the development of the film industry – which would not only reinforce Kenyan people’s capacity to express their culture, but also be a major driver of employment creation and economic development, in compliance with Goal 8 of the SDGs.
 

Welcome to Kenya, a cauldron of heritage, and cradle of mankind and a feral theatre of the wild. Kenya has over decades been a preferred filming destination for Hollywood hits such as “Tomb Raider”, “The Constant Gardener” ,”The First Grader” ,”Cry Freedom” and more.

Kenya, a home to 43 ethnic tribes with a population of 47.6 million inhabitants (2019 Census) and a labor intensive film industry that has thus barely exploited employment for a diverse mix of skills. The industry is regulated by The Kenya Film Classification Board (KFCB), established under the Films and Stage Plays Act Cap 222 of the Laws of Kenya to regulate the production, broadcasting, ownership, distribution and exhibition of film and broadcast content. The KFCB Board primarily examines, classifies and rates films issuing a ‘certificate of approval’ rated in the scale of 0 to 4. The scale indicates the ‘impact’ of the film: “low”, “mild”, “moderate” or “strong”.

The aim of the Board is to safeguard national values and norms through, “efficient, effective and professional film regulatory services”. To reinforce that, the Board evaluates and restricts the airing of adult contents and languages during the watershed period (between 5am –10 pm). It also enforces the programming Code for the free-to-air radio and TV services by ensuring that all programme and non-programme matter, namely commercials, infomercials, documentaries, programme promotions, programme listings, community service announcements and station identifications are classified before they air.

More recently, KFCB has however caused controversy by banning several films, such as the American box office success The Wolf of Wall Street, and the Kenyan film Stories of Our Lives, Rafiki and the 2015 film Fifty Shades of Grey based on the novel Fifty Shades of Grey. Moreover, the KFCB has received public criticism over what is deemed as ‘misdirected censorship‘, ‘moral policing’ and ‘stepping out of mandate’.

In May 2016 for instance, the Board’s executive Director-Ezekiel Mutua faced serious criticism and was accused of ‘an assault on a free media’ and ‘negation of the public’s right to real time news and the freedom of the media’ for warning media houses to air political demonstrations after 10pm, the watershed hour.

LOCAL VIEWERSHIP

The Kenya Film Commission (KFC) was established by the Government in 2005 with the aim of promoting the film industry locally as well as internationally. While the KFCB regulates the creation, broadcasting, possession, distribution of film and broadcast content, the KFC on the other hand, is in charge of the developing, promoting and marketing the film industry locally and internationally as well as generating, managing and disseminating film industry research, information and market data, and act as a repository and archive of Kenya’s film records. The KFC additionally, facilitates the provision of funding and development for film production; and develops fiscal and other incentives to promote investment in the film industry.

Hence, a 2018 KFCB’s public survey on local films and programmes’ consumption rate showed that local programmes top the list of Kenya’s favorite on TV at 64 %. The survey identified quality of the content as the outstanding factor that drives viewership, such acting skills, professionalism, language, the plot, scripting and type of the equipment which the overall product quality.

The KFCB and KFC have duplicated and overlapping roles in certifying persons, association and organization participating in the production of film, photography, video, stills, animation, new media and related media.

Studies conducted by Heva Fund and Hivos (2014) on a range of the creative industry development dynamics also focused on challenges the creative industry in Kenya faces namely: Limited or lack of skills to sustain business survival; inadequate institutional support and lack of exhibition spaces, culture and arts centres among other infrastructures. Heva Fund is the only impact capital vehicle that has a financial model specifically for Kenyan creative economy. Save for regulatory bodies –KFCB and KFC, the Kenyan government has no designated fund specially for creative enterprises; however Vision 2030 Kenya places a lot of emphasis on innovation, science and technology as pillars of development.

According to the Global Impact Investing Network 2015 Report, commercial banks in East Africa have high collateral requirements, often exceeding 100 per cent, and they suffer from a lack of tangible assets by early stage start-ups and the uncertainty of demand has made it challenging for early start-ups to access financing. As a result there remains a gap in the industry for earlier-stage investments.

Other major concerns affecting the industry is the lack of knowledge and understanding of the copyright laws within the industry and how the creative industry entrepreneurs can use laws to protect their creative work from proliferating piracy.

According to analysts, Kenya Intellectual Property Laws meet the basic requirements as set out by the World Intellectuals Property Organization, however the IPR laws are contained in several piece meal policies-not anchored in policy and this leads to disjointed and fragmented efforts.

To turn-around the film industry in Kenya, the state is considering making amends on the existing film law which was inherited from colonial law. The proposed amendments will enable the industry to improve the film scope, tackling piracy and allow artist and filmmakers to receive a fair reward for their creative works.

Through the proposed new reforms (though still a paper tiger), Kenya will introduce highly attractive new tax incentive for foreign film producers working in the country. If that sees the light of the day, it could increase Kenya’s film revenues, which is expected to reach $7.7 million in 2020, according to PricewaterhouseCoopers.

However, a lot of regulatory reforms need to be done to streamline the sector. Political stability, democracy, cultural diversity and heritage and technology offers Kenya a competitive edge in developing her film industry.