Regulations for artistes are unconstitutional

During the colonial era, the State Plays and Public Entertainment Act Cap 49 (hereinafter referred to as the parent Act), was enacted in 1943 to control stage plays and public entertainment in Uganda. Fast forward to 2018, 56 years after gaining independence, the government is proposing unconstitutional and more repressive regulations to gag artistes instead of repealing the restrictions imposed by colonial masters to augment free expression.
Peace Mutuzo, the State Minister for Culture, has given an indication that the ministry is set to present the said regulations before Cabinet for approval. Not to mention poor craftsmanship, the spirit of the regulations is ill-conceived. Although performing arts involves cultural or morality contexts, it is fundamentally an issue of free speech. Gagging this freedom in the name of “preserving and promoting” culture and morals is unconstitutional and an act of repression.
The drafters state that the legal framework of the proposed regulations is founded on constitutional provisions that provide for culture and customary values. What they conveniently ignore is the 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 human rights standards.
Human rights are inherent and not granted by the State. Imposing barriers that threaten to extinguish that inherent nature of rights and grant the State authority to “permit” exercise of freedoms contravenes Article 20(1) of the Constitution.
Article 29 provides for the freedom of speech and expression, thought, conscience and belief. It is clear that the regulations seek to introduce unfair constraints that, for example, require artistes to seek clearance from a minister before performing abroad, mandatory registration with the Ministry of Culture before performing at any public event, censorship through requirement for artistes to submit their work for approval, to mention but a few.
The regulations further seek to escalate Anti-Pornography Act provisions in relation to forms of dressing. By purporting to ban “pornographic, immoral, vulgar, and indecent dressing,” the law is likely to be used to target female artistes, whose bodies are often policed by the society. This contravenes Article 33(1) of the Constitution, which guarantees women full and equal dignity of the person with men.
The overzealous demands of what must be contained in contracts between artistes and the owners of the venues, further threatens the free will to contract to the detriment of business affairs of artistes and venue owners. This is in contravention of Article 40 that guarantees the right to practice a profession and to carry on any lawful occupation. 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.
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 Shs2,000 ($ 0.56) or imprisonment for up to six months or both. In total disregard of these provisions, the regulations provide for fines of up to Shs1,500,000 ($ 417), suspensions, revocation and cancellation of permits.
These proposed penalties, and other new imports such as the “Censorship Board”, are void because subsidiary legislation cannot amend or contravene the parent Act, which proscribes parameters and procedures of the law. Regulations can only guide on how provisions of the parent Act are to be applied.
The proposed regulations present yet another test to Uganda’s constitutional democracy or at least what is left of it. Freedom of expression through art, or any other form, is at the core of democracy. While we must encourage progressive laws, we should boldly reject any proposals that gag artistes and performers.

Mr Masake works with Chapter Four Uganda. Twitter: @masakeonline