Performing arts under attack in East Africa

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Bobi Wine stands in front of the Uganda police crowd control trucks that were deployed to block his 2018 Boxing Day concert at his One Love Beach in Busabala. The concert did not take place. Credit: @HEBobiWine / Twitter

A version of this piece was published in the Daily Monitor newspaper of January30, 2019 and can be viewed by clicking here.

In 1943, the Stage Plays and Public Entertainments Act Cap 49 was enacted to regulate and control stage plays and public entertainment in Uganda during the colonial era. Fast forward in 2018 – 56 years after gaining independence – the government is proposing unconstitutional and ridiculously more repressive regulations to gag artists instead of repealing the restrictions imposed by colonial masters to augment free expression.

What the regime in Kampala is trying to do is not new.

Under the leadership of President John Magufuli, the crackdown is on in neighboring Tanzania. The national arts council, Baraza la Sanaa Tanzania (BASATA), recently banned at least 13 local songs on grounds that they are against the country’s norms and values. This came on the background of the president’s public complaint about what he described as obscene music videos. In a statement, the Tanzania Communications Regulatory Authority charged that,

“The said records have lyrics which violate ethics of regulations of broadcasting services (content) 2005”

Two of the thirteen songs banned Hallelujah and Waka Waka belong to the Tanzanian pop star Diamond Platnumz. All radio stations, TVs, and other public places were prohibited from playing or promoting the songs.

Most recently, Diamond’s other song Mwanza featuring Rayvanny was also banned for “explicit sexual content”. Diamond and Rayvanny were further slapped with a fine of $3,900 and Wasafi Record label was ordered to remove the song from all its digital platforms or risk facing prosecution.

After a difficult year battling Hon. Robert Kyagulanyi a.k.a Bobi Wine and other artists who are increasingly putting their talent and charisma to noble causes to advance freedoms and social justice, Uganda government appears set to follow Tanzania’s path of repression. Only this time, it will not be the morality police at play – the battle is likely to be focused on silencing critics and political opponents. (Bobi Wine’s “Freedom” song).

Recently, the Ministry of Gender, Labour and Social Development released the “Stage Plays and Public Entertainments Act Cap 49 (Live Concerts and Other Public Performances) Regulations 2018.” Though poorly drafted, the proposed regulations demonstrate a clear intention to step up muzzling of artists.

The spirit of the regulations is ill-conceived. Performing arts is not a cultural or morality issue to be regulated in that lens. Performing arts is a powerful form of expression and is therefore, a matter of free speech. Gagging this freedom to silence critics in the name of “preserving and promoting” culture and morals is unconstitutional and an act of repression.

Here below is an analysis of it provisions and the constitutional and human rights concerns raised.

Unconstitutional?

The drafters state that the policy and legal framework of the proposed regulations is founded in the Constitution of the Republic of Uganda under Objectives XIV, XXIV, XXV, XIX, XXIV, and Articles 31, 33(6), 37, and 246. These constitutional provisions largely provide for culture, customary values (that are consistent with the Constitution), and the joint mandate of the State and the citizens to “preserve and promote” Uganda’s heritage.

What they conveniently ignore focusing on is the constitutional freedom of expression, and the wider human rights standards. It goes without saying that any effort to preserve and promote culture must be consistent with the Constitution and its provisions in the Bill of Rights detailed under Chapter Four.

It is therefore important to note that under Article 20 (1), the Constitution states that fundamental rights and freedoms of the individual, which include the freedom of expression, are inherent and not granted by the state. In other words, the freedom of expression though not absolute, is not a privilege to be granted by the state. Imposing unnecessary, unfair, unconstitutional, and cumbersome restrictions to extinguish the inherent nature of rights and grant the state authority to clampdown on exercise of inherent rights and freedoms is unconstitutional and will be challenged by civil rights advocates to the level of its inconsistency.

Further, Article 29 provides for the freedom of speech and expression, thought, conscience and belief. It is clear that the regulations seek to introduce unconstitutional restrictions that for example, require artists to seek clearance from the Minister of Culture before performing abroad, sign an ethical code of conduct with the relevant event organizer before performing, mandatory registration with the ministry of culture before performing at any public event in Uganda, censorship through requirement for artists to submit their work to the Uganda National Culture Forum for documentation and approval, artists to “ensure proper hygiene” before public performance, among others. These restrictions will not only promote censorship but will unconstitutionally limit free expression.

The regulations further seek to escalate provisions under a law that is being challenged in the constitutional court – the Anti-Pornography Act – in relation to “mini-skirt” and other related forms of dressing in contravention with Article 33(1) of the Constitution which guarantees that women shall be accorded full and equal dignity of the person with men. By purporting to ban “pornographic, immoral”, and “vulgar” performances, the regulations fail to define these terms and present overbroad provisions that will be used to target and limit the expression of artists.

The regulations further propose a ban on “indecent dressing” which is likely to be used to target female artists, whose bodies are often policed by society.

Article 40 further states that every person in Uganda has the right to practice his or her profession and to carry on any lawful occupation, trade or business. By imposing unnecessary and unconstitutional directions of what must be contained in contracts between artists and the owners of the venues, the regulations threaten the free will to contract and threaten business affairs of artists and venue owners. We recently witnessed how such restrictions can threaten rights and business during the battle to hold Bobi Wine’s “Kyarenga” music concert at Namboole Stadium and other subsequent restrictions on his concerts or concerts where he is scheduled to perform.

Whereas these rights are not absolute, Article 43 (2)(a) demands that any limitations must be acceptable and demonstrably justifiable in a free and democratic society. These standards have been well traversed in various national and international situations and there is no grey area.

In contravention of the parent Act?

The regulations further propose the establishment of a “Censorship Board”… yes, censorship board composed of stakeholders from five domains of intangible cultural heritage to oversee the work of entertainers and other stakeholders. Of course, this is inconsequential because such bodies cannot be established in regulations as imagined by the overzealous drafters. That function is reserved for Members of Parliament who can exercise it by legislation through an Act of Parliament. The Stage Plays and Public Entertainment Act Cap 49 does not provide for such a board.

The regulations further contravene the offences and penalties as established by the Act. Under section 19 of the Act, offences are punishable, on conviction, by a fine not exceeding Ugx. 2,000 ($ 0.56) or imprisonment for a period not exceeding 6 months or to both. That is all.

In total disregard of these provisions, the regulations provide for a range of strange penalties for contravening its provisions. For artists, they provide for cancellation of practising certificates, discontinuation from practising in Uganda, a fine of up to Ugx. 500,000 ($ 138), revocation of licenses for performing in “unhygienic condition”, and disqualification from performing for a period of 1 year.

For event organisers and film producers, the regulations propose fines of up to Ugx. 1,500,000 ($ 417), suspension from organizing public performances and electronic media coverage or promotion events. For offences by a group of people or companies, the directors, managers or every member of the group shall be deemed to have committed the offence. Further, venue owners who breach the guidelines are to have their certificates cancelled and closed for more than 3 months and fines of up to 600,000 ($ 167).

These proposed penalties are void because subsidiary legislation cannot amend or contravene the parent Act which proscribes parameters and procedures of the law. Regulations can only provide for guidelines that dictate how provisions of the Act are to be applied. They cannot establish new bodies, committees or introduce penalties that are way beyond the ones provided in the parent Act.

The proposed regulations present yet another test to Uganda’s constitutional democracy – or at least what is left of it. If the government proceeds with the process, the regulations and the parent Act will be challenged in courts of law. Will the court stand up to be counted or will they opt for the comfortable “no hearing date” situation to avoid answering the important constitutional questions? History in the recent past leaves the courts with a lot to prove.

Freedom of expression through art of any other form is the oxygen of democracy. While we must support and encourage progressive laws and regulations, we should boldly reject any proposals that gag artists and performers.

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