Abolish Arts Council's Festival Guidelines

HARARE - Zimbabwe should abolish the National Arts Council’s Festival Guidelines because they do not have any statutory basis, either in Statutory Instrument 87 of 2006 - National Arts.

Council of Zimbabwe (General) Regulations, 2006 (CAP. 25:07) as read with its Amendment (SI 166 of 2009) or the regulations themselves.

They have no force of law whatsoever, yet they are draconian as they admittedly seek to curtail freedom of artistic expression to only that the government finds desirable. Ministry officials including the Minister, have no authority to sit at their desks and type out decrees to rule over festival organisers.

Hence the notions of 'clearance' of festivals and 'registration' of festivals, as well as the requirement to submit to the ministry or National Arts Council budgets and plans are manifestly void at law.

It is strange that the guidelines actually stipulate festival registration 'in terms of NACZ Act of 1985 and SI 87/2006' when there are no provisions for such anywhere in the two statutes. The guidelines in addition flagrantly violate numerous fundamental rights guaranteed in the Constitution. They go even as far as to prescribe offences which literally hang in the air.

The battery of fundamental rights trampled upon include freedom of artistic expression through demanding there be a theme, right to privacy through demanding accounts and other information.

It is because of the foregoing that a legal analysis by Nhimbe of the Festival Guidelines recommended that the guidelines be done away with.

The National Arts Council of Zimbabwe (General) Regulations of 2006 (NACZ Regulations) were enabled for enactment by Section 13 of the National Arts Council of Zimbabwe Act apparently to provide for matters connected to the registration of arts promoters and organisations.

The regulations also provide for fees and levies payable in the registration processes. The Amendment (SI 166 of 2009) mainly updated fees and levies from the abandoned national currency to the USD.

The Regulations also provide for penalties for contravention of any penal provisions of SI 87 of 2006.

On account of its narrow scope, SI 87 of 2006 has a couple of provisions that on their face value are harmless but have a substantive negative effect on the realisation of freedom of artistic expression by arts promoters and organisations, and artists by extension.

Sections 3(3) of SI 87 of 2006 – Application for registration deals with matters related to application for registration of arts organisations. Sub-Section 3 provides for a list of entities (juristic persons) in which form arts organisations must be registered for legal recognition by Zimbabwean laws before they could be eligible to register with the NACZ.

Going by principles on legislative interpretation, once a law provides for a list of items with the language used not suggesting that the list is just for demonstration purposes, then any item excluded from the list has no possibility of inclusion.

In other words, the list is closed for organisations that are registered in a different legal regime such as a common law universitas.

A universitas is a legal entity or organisation that assumes legal recognition by mere adoption of a constitution to which members subscribe much as a partnership comes into effect by the adoption of a partnership agreement.

Therefore, limiting the form in which prospective arts organisations could be registered is a form of pre-censorship. Organisations will be forced to seek legal recognition through avenues over which the state has absolute control. That process could be used to screen organisations presumed distasteful.

This is an unnecessary limitation of practice of artistic expression and therefore inconsistent with the Constitution and Zimbabwe’s international obligations.

The provision must be reformed to allow any organisation registered by way of any lawful regime in Zimbabwean law to apply for registration under the regulations.

Section 4(1) as read with 14(1) of SI 87 of 2006 – Processing Application - partly regulates applications for registration as an arts organisation or promoter, respectively.

It appears the advice of District Arts Councils bears strongly on the outcome of the application before the NACZ.

The worrying part is that once the District Arts Council is of the view that the applicant (whether arts organisation or promoter) may not comply with the regulations, or that its objects are not consistent with the objects of the NAC, and that the organisation is not ‘fit and suitable’ for registration, then the application will receive an adverse report.

The regulations allow for arbitrary imposition of conditions on pending applications. They do not provide for a list of criteria to be applied by the District Arts Council to determine ‘fit and suitable’ and basis for perceiving that applicant will not comply with regulations. The law is not clear enough for prospective applicants to align their conduct to the requirements of the law.

The law falls short of the basis qualities any law must have to qualify as law. At best the District Arts Council is allowed to speculate and the speculation invariably carries the day.

Accordingly, the provisions cited above go beyond what is necessary to achieve the legislative objective hence unduly limits the exercise of the right under both the Constitution and international legal obligations.

It is yet another form of pre-censorship.

Section 4(2) (b) as read with 14(2) (b) provides that the District Arts Council is again allowed to consider whether it would be in the public interest to register the arts organization.

Based on the same reasoning above, there are no criteria laid to determine what is and is not in public interest.

The subjectivity of public interest again exposes prospective applicants to arbitrary application of the law.

Applicants have no possibility to align their organisations to the public interest criteria they are unaware of. Therefore, once again the provision does more than is reasonably necessary to achieve the legislative objective of the law.

By so doing it violates artistic freedom to the extent that organisations to facilitate the exercise of the rights are arbitrarily prevented from registering and participate in the promotion of arts in Zimbabwe.

The provision must be repealed or amended to include the criteria to determine ‘public interest’ and ‘fit and suitable’ organisations. Illegality of National Arts Council Regulations S I 87/2006 as amended by S I 166/2009.

* Nyapimbi is Executive Director of Nhimbe Trust

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