On Monday 29th, October 2022, Nairobi city county through the county executive committee for finance and economic planning issued a waiver and/or exemption to freelance photographers and freelance filmmakers from payment of single business permits that are charged under the Nairobi City County Trade Licensing Act.
Image from Kenyanwallstreet.com
There has been a lot of confusion as to which specific permit was waived following the announcement of the waiver.
This is can be understood. There is a myriad of other such licenses and permits that are sought after as one is intending to open a business, conduct a film project photography project et cetera.
So, for purposes of clarity, we will start with this particular issue.
The Nairobi County Trade Licensing Act (NTLA)[1] requires all persons who intend to operate any business or trade within the county to obtain a trade license.
A lot of businesses run by photographers and filmmakers fall within this category.
This is because they are mostly boutiques and small businesses. A boutique by definition is a small company that offers highly specialized services[2].
The NTLA[3] has a category of business permit known as “general traders’ shops & retail services” which these categories of small businesses fall under.
This single business permit is the subject of the waiver in question.
The fees paid under this permit also vary depending on the number of employees under the payroll of the business and its location.
Therefore, this permit is different from the film licenses that are issued by the Kenya Film Classification Board (KFCB).
The single business permit issued by the Nairobi county government, therefore, is the one we ought to concern ourselves with for the purposes of this waiver.
Who is a freelancer?
A freelancer is a person who pursues a profession without a long-term commitment to any one employer.[4] A freelancer can also be defined as a person who acts independently without being affiliated with or authorized by an organization.
In employment law, these individuals are commonly referred to as independent contractors. At the risk of over-simplification, we can also say these individuals are those who are not considered employees.
In my understanding and opinion, these are individuals, such as those who run small businesses, sole proprietorships or even kiosks that are the target of this waiver.
Those operating medium to large enterprises cannot be considered to be “freelancers”.
The waiver comes as a relief to said freelance photographers and freelance filmmakers.
It is a relief because, it is well noted in an FSD Kenya report[5] that, players within the film/motion picture subsector face a challenging enabling environment. The challenging enabling environment consists of:
- High taxes on equipment;
- Costly filming fees;
- Red tape that hinders production;
- Stiff competition from the South African industry that has the advantage of government subsidies; and
- Improper business practices. For example, exploitative contracts between film companies and film crew as well as monopolized enterprises and TV broadcasters.
Further, in 2019, a report[6] that measures the ease of doing business through various indicators such as getting a permit, paying taxes, enforcing contracts, and engaging in international trade[7], among others ranked Kenya at number one hundred and twenty (120) globally in the ease of doing business index.
This is by no means a glamorous rank but it demonstrates that there is room for improvement along with business reforms to aid the ease of doing business in Kenya.
In light of the above, therefore, the waiver on business permits is a welcome reform within the subsector by the reduction of filming costs, regardless of the degree of such alleviation in the grand scheme of things.
Stakeholder observations & recommendations
Be that as it may, there are still some concerns among stakeholders within the subsector that call for the need for improvement.
For example, a submission from Wambui Kairo, who is a member of the Kenya Film & Television Professional Association (KFTPA) & the Producers Guild of Kenya (PGK), in submitting an opinion on this matter, listed four (4) possible areas of improvement[8]. Below were her concerns:
- Lack of a standardized county filming license or permit fee for the film subsector.
- Irrational fee charging criteria. For instance, some counties charge fees based on the “type and size of film equipment” that a filmmaker has. If the filmmaker has a long lens in their kit they are designated as a cinematographer as opposed to a photographer. In addition, those with a small lens are considered “fun seekers” and are charged less fees.
- The existence of separate fees for separate audio-visual media. For instance, Feature films, music videos, and documentaries will be charged differently from a photography shoot, and it will also depend on the length of the audio-visual material.
- Lack of a designated country office that solely handles the making and production of audio-visual material. For example, Kairo laments that filmmakers often find themselves going up and down the different corridors of the county office in search of the correct office to obtain a film license.
- As mentioned earlier, filming fees are based on the duration of the audio-visual content and the number of days it will take to shoot such audio-visual content.
Kairo also proposes certain recommendations to aid the ease of doing business in the film and motion picture subsector. She recommends in relation to counties that:
- A uniform and affordable permit fee for professional film sets;
- The county should consider not charging a business permit for non-commercial projects;
- A waiver on a requirement of permit fees for student filmmakers;
- A waiver on the requirement of permit fees for foreign students and scholars who like to undertake research;
- A waiver on a requirement of permit fees for film amateurs and hobbyists ;
- A central entity and/or office that handles all matters to do with filmmaking. She further proposes this particular office should be the tourism film & liaison office or the culture & film liaison office;
- Waiver of permit fees in some recreation areas such as parks;
- The ceasing of all harassment by county officials and the national police service and other security agencies; and
- Provision of adequate security during filming sets to protect film gear and making generally keeping the peace.
Conclusion
We can rely on and pour over all the datasets and best practice methods both locally and abroad but in the end only time will give us a proper account of the net effect of this waiver.
There is, however, the expectation that it will increase the number of filmmakers willing to pursue the creation of audio-visual content within Nairobi county.
[1] Nairobi County Trade Licensing Act. Requirement for a license. Section 8(1) < https://nairobiassembly.go.ke/ncca/wp-content/uploads/act/2019/Nairobi-City-County-Trade-Licensing-Act-2019-.pdf >
[2] Mariam Webster definition of “boutique” < https://www.merriam-webster.com/dictionary/boutique >
[3] NTLA. First Schedule. Section 9. General Traders Shops & Retail Services 1.1.< https://nairobiassembly.go.ke/ncca/wp-content/uploads/act/2019/Nairobi-City-County-Trade-Licensing-Act-2019-.pdf >
[4] Mariam Webster definition “freelancer” < https://www.merriam-webster.com/dictionary/freelancer >
[5] FSD Kenya Report (2021) “New Business Models for Financing the Creative Sector Research: : Creative Value Through Inclusive Finance ¸ New-Business-Models-for-Financing-the-Creative-Sector-Research.pdf >
[6] World Bank Group, Report (2020) “Doing Business: Comparing Business Regulation in 190 Economies
[7] Note 2 as above
[8] Wambui Kairo Submission “Filming in Kenya: Film Licenses & Permits” < file:///C:/Users/HP/OneDrive/Desktop/FILMING%20IN%20KENYA%20-%20FILM%20LICENCES%20&%20PERMITS%20REQUIRED_26.09.2022-1.pdf >
