“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness”

The brief facts of the case are that Ms. Wanuri Kahiu, the writer, director and co-producer of Rafiki sued KFCB and its boss Ezekiel Mutua for banning the film Rafiki. This film was banned for promoting lesbianism and homosexuality in Kenya.. Rafiki is a love story about two teenage girls who develop a romantic relationship which is opposed to their community and family. The High Court temporarily lifted the ban to allow the film to be considered for an award at the Oscars. This has however been received with mixed feelings. Mr. Mutua for instance termed the film a tragedy and a shame that cannot define the Kenyan culture.  He insisted that gayism was not Kenya’s way of life.

KCPF which is a Christian organization has also had something to say. They contended that 80% of Kenya’s population is Christian. They further state that it is a matter of family which is defined and protected by the State. In reference to the Constitution, they insist that homosexuality or gayism is illegal.

These submissions can however be contrasted with the reality. As much as Kenya claims to be moral and Christian, the traffic on Rafiki film after the ban was temporarily lifted is amazing. The film has also apparently done so well hence attracting the nomination for the award. This article seeks to find out whether the ban of the film Rafiki is moral or hypocritical?

Morality and the Law

One common definition of morality is principles concerning the distinction of what is right and wrong or bad and good. The: “goodness” or “badness” of behaviour boils down to its acceptability. In other words, morality is something amorphous that is only defined by a people. Law on the other hand is a derivative of political authority. The Law which is enforced by the State is but a command from a sovereign. There are therefore points of convergence and divergence between these two.  Plato, for example, explains the idea of true justice which is closer to morality, as distinguished from justice which is apparently merely dependant on human reason. Law therefore can be moral or even be immoral

There is however need to go back a bit. If morality is this amorphous construct that the society develop. Can a society be wrong on the “rightness” of behaviour? The answer is yes. Societies have been wrong. Slavery and slave trade were immoral yet tolerated. Societies that discriminate on women and persons with disabilities are immoral yet there are few people who recognized so. Is there a morality of one? There is a valid argument to be made on a morality of one based on one’s conscience. This is to say that the society may see behaviour as “bad and an individual see it as “good” and it is still fine

Kenya has a country has a number of normative factors. These include: religion, culture and even the law. In an African society culture plays a big role in determining morality. The irony is what Kenyans refers to as African culture are distinct depending on ethnic group. In addition to these, there are some “moral” African cultures that have been stated to be repugnant to justice and morality. This means that Mr. Mutua holy African culture and the way of life he claims to ascribe to-as he trashes other people- may not stand the test of morality. He need not hide behind African culture so that he can be intolerant to ideas. This is simply foolish and infringes on other people’s rights. As much morality is a subject in this case, it is as subjective as it comes

Role of Religion

Religion has a big role in Kenya’s moral choices. This is however very subjective. The Constitution of Kenya recognizes this and hence article 32. This gives citizens freedom and the right to worship belief and practice religion. It is however important to note that article 32 does not include imposing ones belief or morality to other people. As much as the church as a right to be enjoined in any suit in Kenya, where do they get the right to impose their morality to the public? The wisdom of article 8 of the Constitution of Kenya has the implication that religion is a choice and as a citizen one may decide not to be guided by religion  hence a secular society.

Kenyans have therefore always chosen when to be guided by religion and when not to. The church for instance was against the promulgation of the Constitution (2010) and 65% Of the Kenyan voter, majority Christians went against the church. A huge part of the church has always been against family planning and the use of contraceptives; this too they have relatively lost.  They have always been accused of being part of tribalism and partisan politics in Kenya. Is it therefore hypocritical to say that Kenyans are 80% Christians and they are influenced as so? Or is it a lie the church needs to tell so as to   remain relevant as they did in the 15th century.  Claiming that 80% of Kenyans are Christians and therefore they have a say on issues of family and the protection of it is a classic miss direction. The church in Kenya has very little to say about family. They advocate for monogamy (Hyde v Hyde (1866)) while the law has metamophosized to allow for polygamy, single parent families etc. What moral authority does the church therefore have to kill creativity in the name protection of the family with regards to the rafiki film? It may be wise to let people be.  Those who want to subscribe to the way of Christianity need to be allowed to, those who don’t. Let them be free.

The Law and Human Rights Perspective

As stated in the facts of the case, the point of contention is on family protection and values of the society in Kenya. The Kenya film board has banned the film Rafiki as it promotes lesbianism and homosexuality. This they contend is illegal and immoral. The Constitution of Kenya, article 45 deals with the rights to marry and family. Article 45 (2) of the law prohibits gay marriages. Marriage in Kenya is for persons of opposite sex with consents. Article 45(1) advocate for protection of the family. The Penal Code (cap 63) of the laws of Kenya speaks of unnatural acts Section 163 read together with 164 gives a maximum sentence of 14 years imprisonment for anyone convicted of unnatural acts. This is therefore only possible if one considers gayism unnatural but how does one enforce this?  The Sexual offences Act (Cap 64) does not s however recognize gay activities as asexual offences.

It is therefore clear that gayism is illegal in Kenya. Unlike South Africa, Kenya does not recognize such marriages. Sexual orientation is not in the laws. But what has this got to do with the Rafiki film? The film is a piece of art that perhaps shows the realities of the Kenyan society.  In other words, the fact that gayism is illegal and perhaps immoral in Kenya, does not mean that gay people are not in Kenya.. There may be more people within the scope of LGBT than the Kenyan church or righteous society would like to admit. How does banning films or music films that does not hurt anyone but portray what happens in te society help? The hypocrisy by the KFCB however becomes clear as the board bans Kenyan films yet the same themes are carried by the foreign films that Kenyans still watch. As much as the KFCB may feel that they are preserving culture, they are in fact acting unconstitutionally. The Constitution of Kenya 2010 through article 33 elaborates on the freedom of expression to include freedom of artistic creativity. Article 28 is also quite elaborate on the human dignity and perhaps, human dignity should be respected regardless of sexual orientation

A gifted writer, who decides to give you the soft side of a dictator, should never be condemned for that is the reality of society. There is nothing immoral or illegal about that. It may not be pleasing to everybody, but it is wrong to pretend and clothe intolerance in  the question of morality.


As much as it is clear that Kenya is not ready for the LGBT rights. This does not mean that Kenyans should neither pretend that these people exist in the society nor they don’t matter. Societies gradually change and it is the films and creative art that help to shape conversations. In all these, there is need to have an open mind and stop intolerance in the name of moraliy or religion.


Ouma Kizito Ajuong


Is the Finance Act 2018 an Abuse of the Social Contract?

Is the Finance Act 2018 an Abuse of the Social Contract?

While a lot of people may agree with me that Kenya may largely pass for a democracy, few understand democracy as a predicate of a social contract. Democracy is neither an end to itself nor a means to leadership as it is popularly thought of. It is however a way of executing a social contract between the rulers and the ruled. This subject is made relevant by the financial Act, 2018. This is a law which in effect passes down the tax burden to the people of Kenya while disregarding their protests, yet they have very little to do with the debt crisis in the country or the mismanagement of public funds that has caused this. Simply put, it is asking the Kenyan people to pay more, to fund for projects they don’t really need, run a Government that doesn’t care about them and pay debts that they do not know how they came about. This paper therefore delves into the social contact both as a legal and political theory; it analyzes its place in the legal system in Kenya, attempts to interprete the Finance Act 2018 and the debt crisis management with regards to the social contract and finally gives a way out.  

The social contract theory was primarily developed to avoid a state of nature which is famously described by Thomas Hobbes’ five adjectives as a life that is solitary, poor, nasty, brutish and short. It is a life of chaos, characterized by selfishness and might for right. In order for self-preservation and protection and to avoid pain and misery, man must submit to the social contract. This contact consists of two pacts, pactum unionis where people undertake to live together in peace and harmony so as to protect lives and property and pactum subjectionis, where people unite together to pledge to obey the authority and surrender whole or part of their freedom to the authority. The authority in turn guarantees protection of life, property and freedom to certain extent. He is the sovereign and must therefore act or use this authority for the best interest of all the citizens. Is the social contact theory applicable to Kenya?

Kenya is a State with a defined population, area, Government and is sovereign which means that by organization her people seem to have subjected themselves to this contract. The preamble of the Constitution of Kenya manifests elements of pactum unionis where Kenyans undertake to live together as one indivisible sovereign nation, committed to the nurthering, well-being and protection of individuals, the family and communities in the nation. The Constitution of Kenya 2010 further recognizes people’s power as article 1 highlights sovereignty of  the people, article 1 (3) brings in the elements of pactum subjectionis as this power is delegated to the executive, judiciary and parliament. Article 94 (2), gives parliament the role of representing the people. This means that it has to legislate and work for the interest of the people of Kenya. Article 38 which gives Kenyans the right to vote is the ultimate manifestation of the social contract theory in Kenya.

As much as there is no doubt that the people have power and that they cede the power, the question is whether the Government works for the best interest of the people?  Do Members of Parliament always work for the best interest of the people? Does the Executive and the judiciary work for the benefit of the citizens? Do they even realize that the power they exercise belong to the people? There have been fundamental concerns as to whether they can even relate to the problems of the people they lead.  

Kenya is set in a context where the leaders claim to want to fix roads they don’t use, they pretend to be concern of the healthcare system they hardly use, schools their children do not go to and now they want to fix an economy they ruined. While these are blatant abuses of the social contact, none is as strenuous as imposing tax increments to the people of Kenya through the Finance Act, 2018.

The law imposes tax increments in telecommunications services, petroleum products, betting winners, motor vehicle exercise duty, sugar confectioneries, and telephone and internet services. This is done with very minimal participation while ignoring the fact that the most affected people are the poor and economically marginalized. The whole essence of Government is to protect its vulnerable yet the Finance Act, 2018 seems to have the opposite effect. Is there a way out?

When parliament and the Executive in Kenya seem to have betrayed the people and therefore abused both the social contract and the Constitution 2010, there are two ways out of this. Firstly, is using the judicial arm of the Government which also derives power the sovereign will of the people. This may not work as they as they are also part of the system. Secondly is the way provided for by proponents of the social contract theory.

The right to disobey the authority. People need not suffer under an oppress regime, there is no duty to suffer and live from hand to mouth  because those in leadership decide to accumulate debts or  that they made corruption and the misuse of  public resources a way of life.

Disobedience is the true foundation of Liberty -Henry David Thoreau


Ouma Kizito AjuongAdvocate