Artistic Freedom and the Question of Judicial Independence in Africa

Using research on a variety of African contexts, O’Brien Fellow Ayodele Ganiu proposes a thought-provoking argument about the need for an independent judiciary to support artistic freedom, and thus further Human Rights generally.
Image by Elie Kamano, soofLight, Vimeo..

Artistic expressions are vital in civic education and public enlightenment in democratic societies. In ensuring an open and democratic governance, artists play an important role, addressing political, social and economic issues in ways that appeal to emotions, promote citizens’ right to information and public participation. For artists to function effectively in this role, artistic freedom is a precondition. According to UNESCO [.pdf], artistic freedom is defined as “the freedom to imagine, create and distribute diverse cultural expressions free of governmental censorship, political interference or the pressures of non-state actors. It includes the right of all citizens to have access to these works and is essential for the wellbeing of societies.”

Although violations of artistic freedom are a global phenomenon, as evidenced in The State of Artistic Freedom 2019 Report [.pfd], artistic expressions with dissenting views are brazenly suppressed in Sub Saharan Africa by politicians, clerics, community leaders and others who feel challenged in their bid to hold on to power and influence by artists. Musicians, composers, filmmakers, comedians, playwrights, visual artists, poets and other artists increasingly struggle to create critical works as a result of restrictions imposed by the state, religious establishments, traditional practices and social customs. Artists have faced and continue to face censorship, threats, attacks, harassments, arrests and prosecutions arising from these obstacles.

Former UN Special Rapporteur on Cultural Rights, Ms Farida Shaheed, embarked on a comprehensive study on these issues. She presented the landmark Report of the Special Rapporteur in the field of cultural rights: The right to freedom of expression and creativity [.pdf] in 2013, which became the benchmark upon which new global reports have been developed to track these restrictions to artistic freedom worldwide. The former UN Special Rapporteur, among other recommendations, urged UN Member States to review legislations and practices restricting the right to freedom of artistic expression in compliance with their obligations to respect, protect and fulfil this right, and raised concerns about the need for urgent discussions in several areas identified in the report.

The challenges to artistic freedom are worsened by limitations to judicial independence in a number of African states. Although many African countries practice democracy, the overall independence of courts is less than the global average [.pdf]. Despite the diversity in regimes under which African courts operate, many countries in the region share similar characteristics. Courts in Africa are vulnerable to undue interferences such as threats, attacks, bribery and removal of judges by the executive arm of government. Undue interferences also occur in the form of informal networks arising from political affiliations, ethnic and religious ties.

In Uganda, widespread criticisms of the government have been strongly reflected in artistic expressions in recent times. Through music and other art forms, many artists, including popular reggae dancehall star Bobi Wine, raised concerns over a 2018 law by President Yoweri Museveni’s administration, which removed the upper presidential age limit to allow the eligibility of the 74-year-old president to run for a sixth term in 2021. Ugandan activist, academic, feminist and poet, Stella Nyanzi, was one of such strong creative voices that have criticised the president and his government. In September 2018, she posted a poem on Facebook using a metaphorical expression to describe the birth of the President and his mother's vagina as part of the broader criticisms of his perceived oppression of the country for over 30 years. She was arrested in November 2018. On 2 August 2019, Nyanzi was found guilty of “cyber harassment” and sentenced to 18 months imprisonment. She, however, was expected to serve only nine months having already been incarcerated nine months awaiting trial. The judgement prompted unrest within the court's premises where a plastic bottle was reportedly thrown at the magistrate and a confrontation averted between supporters of Nyanzi and the police.

Similarly, cultural activists in Nigeria and around the world condemned what was widely criticized as an unjust imprisonment of a Kano-based musician Mohammed Yusuf. Known by his stage name AGY, the artist was arrested on 18 June 2019 and sentenced barely two days after for allegedly insulting Kano State governor Abdullahi Ganduje in a song. The alleged insult relates to the verses of the lyrics composed in Hausa language, which says, “The Kano governor has already turned blind. I swear, what you did is hurting us. For lucre, the governor is more than a thief. For lucre, the governor can sell out Goggo [his wife].” The governor is widely believed to be corrupt. In October 2018, video clips of the governor receiving what appeared like US dollar notes went viral. It was said to have been recorded by a spy camera and published by an online medium Daily Nigerian to press for investigations into allegations of bribe payments from contractors.

In what appeared as window-dressing to create a favorable impression of the prosecution, AGY was also charged with two counts of releasing a song and music video without the permission of the Kano State Censorship Board. He was sentenced to two years imprisonment, with an option of 50,000 naira fine for each of the two counts, totalling 100 000 naira ($280). However the first count of "insulting" the governor had no sentencing option other than imprisonment. The artist is currently serving his jail term.

In October 2019, Guinean reggae artist Elie Kamano [pictured at the top of this post] was reported arrested for participating in a peaceful protest opposing the attempts to secure a third term by President Alpha Condé. He was sentenced to one year imprisonment alongside other protesters. According to Guinee News, the reggae star and other imprisoned activists were released on 28 November 2019 after the first appeal hearing. The case was adjourned to 5 December 2019.

The popular saying in Nigeria that “the judiciary is the last hope of the common man”, including for an artist who uses creative expression to challenge the status quo, is fast becoming a fallacy in many African countries. The examples above, which are just a few of more than 40 similar cases documented so far in the course my research as an O’Brien Fellow in Residence at McGill, the question of judicial independence in Africa raises concerns. There have been numerous controversial judgments by courts across the continent in 2019 that have fallen short of international human right standards.

It is also noteworthy that judicial independence is negatively impacted by outright disregard for court orders by the executive arm of government and their agencies. On 6 December 2019, armed security operatives reportedly stormed a federal high court in Nigeria to forcefully re-arrest a journalist, Omoyele Sowore who was on trial in less than 24 hours after being granted bail. The judge and court officials reportedly fled the courtroom for their own safety. Such brazen disregard for rule of law creates an atmosphere of fear and undermines the independence of the judiciary.

Many of the prosecutions observed in my research of cases involving artists were politically motivated. The judgements appear to have been influenced contrary to the general principle that “for judgement to be fair, it must also be seen to be fair”. The danger in politically motivated prosecutions and influenced judgements is immeasurable. It fosters impunity by politicians to abuse justice system and use prosecution to give legitimacy to oppression and tyranny. One of the key objectives of my research is to provide verifiable evidence that cultural activists need in advocating for justice. To protect artistic freedom in Africa and empower artists to exercise their civic responsibilities, citizens and civil society must stand up and demand for an independent, transparent and accountable judiciary.

Without an independent judiciary, there will be no true art, and no rule of law.

The image used to illustrate this post is a still from a video by Guinean reggae artist Elie Kamano, who was arrested for participating in a peaceful protest opposing President Alpha Condé's attempts to secure a third term, and whose case is ongoing.

About the author

Ayodele GaniuAyodele Ganiu is an Artist and Activist advocating and defending artistic freedom of expression, cultural policy and copyright reforms in Africa. He has served as Coordinator for Artwatch Africa, a human right program of Arterial Network, which promotes the rights of artists to freedom of expression. He was a member of Freemuse research team that produced State of Artistic Freedom (SAF) Report 2018; Creativity Wronged: How women’s right to artistic freedom is denied and marginalized (2018) and State of Artistic Freedom (SAF) Report 2019.

He is the Program Director of Intro Afrika, a cultural policy advocacy organisation based in Nigeria, and currently an O'Brien Fellow in Residence at the Centre for Human Right and Legal Pluralism, McGill University, Montreal, Canada.

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