Kenya constitutional court makes landmark ruling on advertising

Kenya Film Classification Board Chairman Ezekiel Mutua

By Moses Wasamu for The Messenger


NAIROBI  — The Constitutional Court sitting in Nairobi, Kenya, has ruled against daytime advertising by beer, betting, and condom companies, in a decision that is expected to have significant commercial implications.

Justice Joseph Mativo’s ruling effectively means that beer, betting, condom and gambling adverts that contain scenes, images or language intended for adults should be done outside the ‘watershed’ period of 5 a.m. to 10 p.m.

The ruling came out of a case lodged by the Alcoholic Beverages Association of Kenya (ABAK) challenging the Kenya Film Classification Board’s (KFCB) mandate to regulate audio-visual commercials aired on radio and television.

The association argued that it is media houses that have the responsibility to ensure that they broadcast content that is suitable for watershed hours, and that the KFCB’s mandate is “limited only to the classification and imposition of age restrictions on viewership… and to give consumer advice on information relating to the protection of women and children”.

In its replying affidavit, the film board said that it has intervened in media markets following complaints from members of the public and investigations revealing that some alcoholic beverage companies have been broadcasting advertisements that were not submitted to KFCB for classification and approval.

In his ruling, the judge agreed with KFCB’s position that it was within its mandate to regulate the content of adverts, contrary to the position taken by the petitioners.

“The Kenya Information and Communication Act of 2013 (KICA) gives KFCB the mandate to monitor television stations in order to ensure that content meant for adult audiences is not aired during the watershed period,” he said.

In January, KFCB wrote to beer manufacturers, betting and advertising companies directing them to stop advertising alcoholic and betting products during the watershed period. However, the said companies defied the order.

“This is a landmark ruling which aims at protecting children from exposure to harmful content and preserve the moral values of the nation,” said the Film Board CEO Ezekiel Mutua.

Safaricom profits

The KFCB CEO has criticized Safaricom, the biggest mobile telephony company in Kenya, which was enjoined in the case.

“Safaricom is fighting our regulatory efforts on betting and gambling because most of it rides on MPESA and airtime, which gives them profits,” he said in a statement. “But while KFCB supports business…beer, condoms and gambling adverts should not target children.”

According to the Film and Stage Plays Act and the Programming Code for Free to Air Radio and Television Services in Kenya, no film, including adverts, should be created, distributed, broadcast or exhibited without obtaining a filming license and classification from KFCB.

The KFCB CEO has also criticized media for working in cahoots with industry players to frustrate the board in discharging its mandate.

“Freedom must come with responsibility and we must all stand up for the children,” he said, admonishing the mainstream media for refusing to implement the ruling since it was delivered, yet it was a case of immense public interest.

Censorship and revenue concerns

The court ruling and directives from KFCB may hurt broadcasters commercially, since they will lose advertising to alternative channels like digital and outdoor advertising. Beer manufacturers, betting companies and telecom companies are the biggest spenders in advertising in Kenya.

The High Court ruling dated May 12th elevates the Film Classification Board into a crucial mediating role between advertisers and viewers. The board has been criticized and praised in equal measure; some people feel that it is too overzealous and petty in discharging its mandate while others believe that it is helping to sanitize the airwaves from content that is immoral or unsuitable for children.

Earlier, press freedom organization Article 19 raised concerns about the case. The group’s East and Horn of Africa director Henry Maina said the KFCB boss was “overzealous” while a lawyer, Mokaya Bw’Orina, termed Mutua’s directives as “illegal.”

“The question most of us are asking is where is he (Mutua) drawing powers from? Though he keeps quoting legislation to justify his actions, most of things he is doing are extra-legal and not supported by law,” Maina said, adding that the KFCB that Mutua heads, is established under Cap 222 of the Film and Stage Plays Act, first enacted in 1962, long before the constitution of 2010 came into force.

By the time of writing, it was not clear whether the association or the other interested parties would appeal the court’s decision. If they do, it will be another tough battle for the film board, since it will be fighting against big moneyed players in the Kenyan economy.


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