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The Charter of Fundamental Rights and Freedoms guarantees the right to freedom of speech and the right to seek, receive, distribute or disseminate information, opinions and ideas through any media. Further, The Charter also provides that Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights such as the right to freedom of speech.
While recognising that the right to freedom of speech is not absolute, it is my position that the criminalisation of certain music by section 15, and the consequent restriction on the right to freedom of speech, is incompatible with the said right guaranteed by the Charter for several reasons;
1. Notwithstanding the introduction that states the lofty aims, it is my position that there is no legitimate aim being pursued by the Government in including section 15 in the legislation. It is the writer's view that the State is only seeking to prosecute artistes who the police suspect to be involved in criminal activity without doing the necessary investigation to secure a legitimate basis to charge, as opposed to preventing the promotion of criminal activities. The State already has sufficient legislation to achieve the stated objectives without significantly impacting on the right to freedom of speech. For any law to be valid, constitutional law requires that such law have a legitimate aim
2. The right to freedom of speech which section 15 seeks to restrict would be less curtailed if through the Broadcasting Commission the State uses its power to ban certain songs from being played on a case by case basis as it has done in the past. This would not have such a chilling effect and it would achieve the objective of preventing the promotion of criminal activities. When the State seeks to restrict Charter rights, assuming it is for a legitimate purpose, the State must use the means available to it that least restricts the Charter rights.
3. Section 15, given how broad, ambiguous and subjective it is, will have a chilling effect on those persons who want to legitimately exercise their right to freedom of speech through music. In other words, instead of facing the possibility of spending a number of years in prison, they would just opt not to create, produce or perform music even if it was not their intention to promote criminal activities. In essence, the chilling effect would mean the certain end of a rich part of our culture.
4. If a producer were to be guided by section 15 it would act as a prior restraint as before a producer chooses to record a song the prudent producer would seek to have the song cleared with the police. Requiring an individual to clear his/her song before it is recorded is a prior restraint, and prior restraints, in relation to freedom of speech, is incompatible with our Constitution.
5. Section 15 in its current state does not amount to valid law, as it lacks certainty and offends the rule of law. The law ought to be formulated with sufficient precision to enable the artiste or producer to regulate his conduct so as to allow him to avoid criminal sanction. How is the producer or artiste to know whether he is promoting a criminal organization? Who designates an organisation a criminal organisation? Is a clearing house for songs going to be set up?
6. Further, there are no adequate safeguards against abuse, nor does it provide for the possibility of challenge and a remedy against its abusive application. An artiste or producer who had no intention of breaching the law would be forced to defend himself in a court of law against a criminal action and face the risk of imprisonment.
7. I am not aware that the need for restricting the right to freedom of speech, a right guaranteed by our Charter of Rights, has been demonstrably justified as necessary in the free and democratic society in which we live. I am not aware of the empirical study that links music to gangs and criminal activity. There may be anecdotal evidence of this, but where is the empirical information? On the contrary, there is empirical information to demonstrate that music has created a source of income for underprivileged persons and the creative industry's contribution to GDP continues to increase.
No amount of amendments could cure all the defects mentioned above. The only amendment that could possibly cure section 15 is if it were to be deleted.
Chukwuemeka Cameron is an Attorney and Partner at Carolyn Reid & Co. chukwuemeka.cameron@gmail.com
While recognising that the right to freedom of speech is not absolute, it is my position that the criminalisation of certain music by section 15, and the consequent restriction on the right to freedom of speech, is incompatible with the said right guaranteed by the Charter for several reasons;
1. Notwithstanding the introduction that states the lofty aims, it is my position that there is no legitimate aim being pursued by the Government in including section 15 in the legislation. It is the writer's view that the State is only seeking to prosecute artistes who the police suspect to be involved in criminal activity without doing the necessary investigation to secure a legitimate basis to charge, as opposed to preventing the promotion of criminal activities. The State already has sufficient legislation to achieve the stated objectives without significantly impacting on the right to freedom of speech. For any law to be valid, constitutional law requires that such law have a legitimate aim
2. The right to freedom of speech which section 15 seeks to restrict would be less curtailed if through the Broadcasting Commission the State uses its power to ban certain songs from being played on a case by case basis as it has done in the past. This would not have such a chilling effect and it would achieve the objective of preventing the promotion of criminal activities. When the State seeks to restrict Charter rights, assuming it is for a legitimate purpose, the State must use the means available to it that least restricts the Charter rights.
3. Section 15, given how broad, ambiguous and subjective it is, will have a chilling effect on those persons who want to legitimately exercise their right to freedom of speech through music. In other words, instead of facing the possibility of spending a number of years in prison, they would just opt not to create, produce or perform music even if it was not their intention to promote criminal activities. In essence, the chilling effect would mean the certain end of a rich part of our culture.
4. If a producer were to be guided by section 15 it would act as a prior restraint as before a producer chooses to record a song the prudent producer would seek to have the song cleared with the police. Requiring an individual to clear his/her song before it is recorded is a prior restraint, and prior restraints, in relation to freedom of speech, is incompatible with our Constitution.
5. Section 15 in its current state does not amount to valid law, as it lacks certainty and offends the rule of law. The law ought to be formulated with sufficient precision to enable the artiste or producer to regulate his conduct so as to allow him to avoid criminal sanction. How is the producer or artiste to know whether he is promoting a criminal organization? Who designates an organisation a criminal organisation? Is a clearing house for songs going to be set up?
6. Further, there are no adequate safeguards against abuse, nor does it provide for the possibility of challenge and a remedy against its abusive application. An artiste or producer who had no intention of breaching the law would be forced to defend himself in a court of law against a criminal action and face the risk of imprisonment.
7. I am not aware that the need for restricting the right to freedom of speech, a right guaranteed by our Charter of Rights, has been demonstrably justified as necessary in the free and democratic society in which we live. I am not aware of the empirical study that links music to gangs and criminal activity. There may be anecdotal evidence of this, but where is the empirical information? On the contrary, there is empirical information to demonstrate that music has created a source of income for underprivileged persons and the creative industry's contribution to GDP continues to increase.
No amount of amendments could cure all the defects mentioned above. The only amendment that could possibly cure section 15 is if it were to be deleted.
Chukwuemeka Cameron is an Attorney and Partner at Carolyn Reid & Co. chukwuemeka.cameron@gmail.com
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