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Film producer Wanuri Kahiu has appointed former Attorney General Prof. Githu Muigai as her lead counsel in her petition to the Court of Appeal seeking to overturn the High Court's decision to ban her 2018 film 'Rafiki', which tells a story of lesbian romance.
Rafiki was banned by the Kenya Film Classification Board (KFCB) in April 2018 on grounds that it promotes homosexuality in Kenya, where gay sex is a crime under the constitution, although no one has ever been prosecuted for being gay.
Following the KFCB ban, Wanuri went to the High Court to challenge the ban, arguing that it violated the freedom of expression enshrined in the Kenyan constitution.
In his judgment, judge Nzioki Makau upheld the KFCB ban, saying there was no violation of freedom of expression as the board had acted within its mandate.
"The mandate in my view is constitutional as provided under the Films Act. If what is sought by the petitioner is granted this mandate would also be placed in limbo.” Makau stated.
The judge went on to add that Wanuri had failed to show at any point that KFCB acted outside its powers under the Act nor did it act in bad faith in banning the film.
In his appeal to the Court of Appeal, Prof Githu argued that Judge Makau erred in the way he arrived at his decision.
"Judge Makau at the end of the hearing, came to the conclusion that the High Court had no jurisdiction in (hearing the matter) and that he had been approached prematurely. Surprisingly he didn’t down his tools, he nonetheless went ahead to hear the matter. The judge was in grave error."
The film, which Prof. Githu described as 'groundbreaking' during the appeal hearing, tells a love story about two young women living in a Nairobi housing estate.
In September 2018, another High Court judge, Lady Wilfrida Okwany, temporarily lifted the KFCB ban for seven days to allow the film to be screened in Kenya to qualify for the Oscars in the Best Foreign Language Film category. Tickets sold out in Nairobi cinemas.
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