BY BAMUTURAKI MUSINGUZI
The recent attempt by the government to implement new rules and regulations that require artistes to submit their scripts, lyrics and other forms of artwork for review and approval before they can be presented to the wider public has reignited a new debate.
Stakeholders want the re-establishment of the ministry of culture to regulate cultural and creative industry development programmes that are currently scattered in different ministries.
On November 8, 2019, 18 regulations were gazetted by the minister of ICT to operationalise the Uganda Communications Act of 2013. These regulations replace those which were made in 2005, under section 94 of the repealed Uganda Communications Act, Cap 106.
Among the newly gazetted rules and regulations that raised an uproar among artistes include the Stage Plays And Public Entertainments Rules, S.I No.80 of 2019; and The Uganda Communications (Film And Commercial Still Photography) Regulations, S.I No.79 of 2019. According to the Uganda Communications Commission (UCC), the rules and regulations not only change the entire current licensing framework, but also extend the regulatory oversight to new services and many hitherto unregulated services and industries. At the same time, the regulations seek to further improve the regulatory environment in relation to consumer protection issues.
Promotion of standards
UCC says it is creating an enabling environment, developing standards and professionalism, streamlining and promoting sanity, and facilitating the growth and development of the entertainment industry.
The rules and regulations that were announced by government in July after Parliament had approved them in May, also provide for numerous licenses and permits before presentation, stiff penalties and jail terms.
Aggrieved by the new regulations, members of the National Union of Creative, Performing Artists and Allied Workers petitioned the Speaker of Parliament for intervention.
In their petition that they handed over to the Speaker Rebecca Kadaga on August 4, the artistes argue that the new regulations will curtail the activities of the entertainment industry.
Replication of rules
Artistes observe that S.I 79 of Stage Plays and Public Entertainment Rules 2019 and S.I 80 of the Film, Documentaries and Still Photography are ideally a copy and paste of each other and are derived from the stage plays and Public Entertainment Act 1943.
The British colonialists then needed to maintain control over information, spread their propaganda and manage the content exposure of African elites to the independence struggles at the time.
The current regulations are premised on the Stage Plays and Public Entertainments Act Cap 49, which was repealed by the Press and Journalists Act Cap 105, whose commencement date is July 28, 1995.
The petitioners also note that implied repeal occurs where two statutes enacted on the same subject matter are mutually inconsistent. The effect is that the latter statute repeals the former statute pro tanto (insofar as it is inconsistent). The implication is that this inconsistency by implication repealed the earlier law.
According to the petitioners, Article 41 (2) of the 1995 Constitution of Uganda guarantees that every person in Uganda has the right to practice his or her profession and to carry out any lawful occupation, trade or business. Article 21 (2) of the same Constitution provides that a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.
“As such, in our opinion, the above regulations are null and void to the extent of their inconsistency within the provisions of the Constitution as per Article 2 (2) of the Constitution,” the petitioners argue.
Breach of privacy
“It is dangerous to grant UCC such powers to censor and control each and every form of creative arts, a move that essentially amounts to thought policing. It would be even more dangerous to allow UCC to breach the privacy of all of its users and to monitor their activities without reasonable cause. It would be myopic to ignore the chilling effect that the regulations would have on our struggling creative industry,” the petitioners contend.
“It is true that UCC’s mandate, as laid out in Section 5 of the 2013 Act is to regulate communication, but that is where it misses the point. Not all aspects of the creative industry fall squarely into communication services,” the Associate Professor of Law (Intellectual Property Law expert) and currently Board Chair of the Copyright Institute of Uganda, Dr Anthony C.K. Kakooza told Daily Monitor.
“Many fields of areas of creativity, which are recognised as copyright, do not necessarily fall into communication services unless the copyright owners choose to broadcast them. But some aspects of literary works may never be considered as falling into the spectrum of communication. As such, this is certainly not the best way for UCC to execute its mandate,” says Kakooza.
The petitioners therefore are imploring Parliament to: recall the said regulations and have them repealed; have infringing sections of the Stage Plays and Public Entertainment Act reviewed and repealed; ensure that enactment of future regulations about the sector have provisions for stakeholder consultations; and harmonise the various ministries and government agencies that assume any role in the creative industry and create one-stop centre for the arts industry.
Kadaga acknowledges that the regulations regarding government censorship of performing arts products were passed without much scrutiny, but can still be revisited and reviewed.
“It is unfortunate that we did not thoroughly internalise these regulations when they are being passed. However, I will instruct the committee of ICT to handle the matter and provide public hearings to your union,” says Kadaga.
After a public outcry and pressure from the artists, the minister of ICT and national guidance Judith Nabakooba suspended the rules and regulations on August 5.
Yardistic not explained
Asked how these regulations will affect the artistes, the stand-up comedian Kenneth Kimuli aka Pablo told Daily Monitor: “We need to ascertain whether these regulations are lawful and how they affect the constitutional right of freedom of expression. We don’t have an institution for comedy, so I don’t know what yardstick the government intends to use to qualify one as a comedian.”
“Having said that, these regulations will suffocate our mode of operation, especially when it comes to content creation,” Pablo adds.
Joel Sebunjo, a folk music artiste, says: “Censorship limits people from sharing knowledge and experience with others. But we need to draw the line between justified censorship and anti-democracy. Every act of censorship will be seen to destroy icons.”
Charles Batambuze, the executive director of the Uganda Reproduction Rights Organisation (URRO) says regulations need to be more empowering, especially to the SMEs that dominate the creative sector.
“They shouldn’t be swept out of business. We need regulations that will improve the status of artistes. Their contribution to the economy over the years cannot be underestimated,” he says.
A ploy to silence artistes
According to Freemuse’s “State of Artistic Freedom Report 2020,” states have introduced new laws and policies for national legislation or illegitimately used already existing legal provisions as measures to stifle dissent.
Although freedom of artistic expression is often guaranteed and protected through national constitutions, authorities have found ways to use other provisions to silence artists.
Asked what impact these new regulations will have on the entire creative industry, Pablo, said: “They will cripple the creativity of the industry for some time but the beauty about art is that no matter how much you try to suffocate it, it will find a way of addressing sensitive issues that affect society. Theatre has power to break or make a system and these regulations will be a motivation for the creatives to learn to fly without perching.”
The petitioners also noted thathe creative sector is divided among various ministries and government departments, which is against the current government policy in creating a single/one point centre to enable and foster business and investment.
Kadaga concurs that the entertainment industry needs to have a ministry through which their concerns can be addressed. Lack of a ministry of culture has deprived the sector of business and investment opportunities.
Roles are scattered
Currently, the docket for culture falls under the department of culture and family affairs in the ministry of gender, labour and social development. The department is headed by a commissioner, an assistant commissioner plus three other officials to administer and regulate the entire sector.
The Cross Cultural Foundation of Uganda (CCFU) is spearheading campaigns to lobby authorities to institute a ministry with a distinct naming “ministry of culture” as the case is with all other countries in the East African region.
Government established a ministry of culture and community development after independence. The department of culture therein “was to preserve, promote the development of Uganda’s cultures.”
Ministry of culture
In its petition titled “The Time is Now for a Ministry of Culture in Uganda!” CCFU notes: “In the 1980’s, changes occurred, often as a result of external influences. The Ministry was re-named Ministry of Youth, Culture and Sports. The Department of Antiquities and Museums was transferred to the then Ministry of Tourism, Wildlife and Antiquities. It was envisaged that the transfer would promote cultural tourism. But analaysts felt this in a way weakened the culture function within government having split the responsibility for cultural affairs among two ministries.”
A distinct ministry is the solution
“Meanwhile the visibility of the culture function at the parent ministry was reduced when “gender” took pre-eminence, primarily under the influence of foreign donor funding flows, leading to the “loss of a philosophical outlook on culture.” From the 1990s, culture was relegated to a “department” within the Ministry of Gender, Labour and Social Development, just as “Antiquities and Museums” found their home as one of 4 departments in the Ministry of Tourism,” CCFU adds.
“With a distinct ministry of culture, a strong point of recognising the central role of culture in defining Ugandan identity will be made. It is also crucial for affirming our sovereignty: cultural activities are currently often dependent on foreign sources – a ministry of culture would provide moral and some financial support and leadership to the culture sector. The ministry would ensure that cultural related projects achieve higher Government support. Development would also be enhanced given that Culture in increasingly recognised as a key element for economic and social growth,” the CCFU strategy, advocacy and fundraising director, Sam Kayongo told Daily Monitor.
“A distinct ministry of culture could provide leadership in harnessing the resources of cultural industry, in spurring the growth of cultural tourism and employment, and in supporting Uganda’s education sector in a way that is in tune with Uganda values and heritage. It serves the purpose of pooling resources currently scattered across two departments in the separate ministries. Besides, the current distribution of responsibilities across two departments in two different ministries breeds inefficiency, with overlaps, competition for resources and lack of clarity as to which ministry is precisely responsible for what,” Kayongo added.