ARTICLE 19 welcomes the decision of the Court of Appeal in Kenya delivered on 23 January 2026, which declared unconstitutional key provisions of the Film and Stage Plays Act that have long enabled the Kenya Film Classification Board (KFCB) to coercively regulate artistic expression. Following on from ARTICLE 19 Eastern Africa’s support for freedom of expression arguments, we call on the KFCB and other government bodies tasked with regulating artistic expression to take further steps to ensure the protection of freedom of expression across the creative industries.
On 23 January 2026, in a landmark ruling, the Court of Appeal in Kenya struck down section 9(1) of the Films and Stage Plays Act (Cap 222), which permits the KFCB to use force in film regulation beyond situations involving danger to persons, property, or animals. The Court also declared unconstitutional section 16(3), which allowed the KFCB to retain excised parts of a film. These findings place important constitutional limits on the use of force and the confiscation or retention of creative material by state authorities.
‘This ruling confirms that in Kenya, artistic expression can still be curtailed on broad moral and cultural grounds, even when it poses no harm. While the Court placed some limits on coercive state power, it left intact a censorship system that risks chilling artistic creativity, public debate, and access to information particularly for LGBTQ+ voices’, said Mugambi Kiai, ARTICLE 19 Eastern Africa Regional Director.
Background
The appeal arose from a legal challenge brought by filmmaker Wanuri Kahiu and a coalition of civil society organisations following the KFCB’s decision to ban the screening and distribution of the 2018 film Rafiki on the grounds that it depicted homosexuality and was allegedly contrary to Kenyan law and culture. ARTICLE 19 Eastern Africa participated in the proceedings as an interested party, supporting arguments on freedom of expression, artistic creativity, and non-discrimination.
Wanuri Kahiu argued that the ban was an infringement of her freedom of expression protected by Article 33 of the Kenyan Constitution. While offering temporary reprieve in late 2018, the court initially granted the temporary removal of the ban on the film and allowed its screening in Kenya. However, on 26 April 2020, the High court issued a judgement, essentially declaring that the KFCB’s decision to ban the film was constitutional and valid, dealing a huge blow to the freedom of artistic expression, especially at the intersection with the LGBTQ community.
In the latest ruling by the Court of Appeal in 2026, while the court largely upheld the existing film classification and censorship framework, including the view that freedom of expression under Article 33 of the Constitution may be limited on grounds such as public morality, child protection, and culture, ARTICLE 19 notes that the decision nonetheless represents an important step in curbing the most coercive aspects of film regulation in Kenya.
The Court’s ruling affirms that regulatory authorities cannot exercise unchecked power over artists and creative works, particularly through the use of force or the permanent retention of expressive material. However, the Court did not overturn the restriction on Rafiki itself and reinforced the requirement that filmmakers must exhaust internal appeal mechanisms before seeking constitutional remedies, raising ongoing concerns about access to justice and the chilling effect of censorship.
ARTICLE 19 reiterates that film and other forms of artistic expression are vital tools for public dialogue, cultural participation, and the advancement of human rights, including the rights of sexual minorities. Any regulatory framework governing creative expression must be narrowly tailored, non-discriminatory, and fully consistent with Kenya’s constitutional and international human rights obligations.
ARTICLE 19 will continue to monitor the implementation of this decision and to advocate for reforms that strengthen freedom of expression, artistic creativity, and the public’s right to access diverse ideas and information.