‘Rafiki’ ban petition fails litmus test

The Court of Appeal in Mombasa has dismissed a constitutional challenge against the banning of the film Rafiki.

On January 30, Justices Agnes Murgor, Kibaya Laibuta and Grace Ngenye-Macharia ruled the petition brought by Michael Kioko was barred by the doctrine of res judicata (already judged), as the issues had already been litigated in a previous high-profile suit.

The controversy dates back to April 27, 2018, when the Kenya Film Classification Board, then under the leadership of chief executive officer Ezekiel Mutua, issued a public statement banning the distribution, exhibition and possession of Rafiki within Kenya.

The board claimed the film, which depicts a lesbian romance, promoted themes contrary to the country’s laws and cultural values.

In February 2019, Kioko filed a petition at the High Court in Mombasa, seeking a declaration that this ban violated several constitutional rights, including freedom of expression and the right to equality and non-discrimination.

However, the Kenya Film Classification Board successfully argued that Kioko’s case was a mirror image of a 2018 petition filed in Nairobi by the film’s director, Wanuri Kahiu.

In that earlier case, the High Court had deliberated on whether the ban infringed upon the constitutional rights of the creators and the public.

The appellate judges noted that for a matter to be considered "already judged", the subject matter and the parties involved must be substantially the same.

Justice Murgor, delivering the judgment, clarified that even though Kioko was not a party to the original suit by Kahiu, he was litigating the same public interest issue.

"The position is different, given that the respondent and the subject matter are the same, a finding of res judicata will not be negated," the court observed.

This means once a court of competent jurisdiction has made a final ruling on a specific administrative action, such as the banning of a film, subsequent litigants cannot restart the same battle under the guise of a fresh petition.

Specifically, the court held that the question of whether the ban infringed on artistic creativity was already definitively settled, arguments that the ban targeted content based on sexual orientation were found to be substantially identical to those previously litigated and the challenge against the board's power to restrict distribution was deemed a re-litigation of the director’s original suit.

The court also took a firm stance on the issue of legal costs. Kioko had argued that as a public interest litigant, he should not be ordered to pay the board’s legal fees.

The bench disagreed, finding that the petition did not serve a unique public purpose since it merely sought to re-litigate a settled matter.

"Therefore, the public interest element not having been demonstrated, we find that the learned judge rightly awarded costs against the appellant," the bench concluded. By dismissing the appeal with costs, the court brought a definitive end to this specific legal challenge against the board's censorship powers.

As such, future challenges cannot simply repeat these claims; instead, litigants would need to identify new administrative failures or legislative shifts to bypass this legal barrier.