As I was driving in my car on May 2, 2007, the eve of the general election, the DJ on a popular radio station signed off her shift at 2pm with the international hit, 'Tired of this miserable life'. Without a word she had expressed her disgust with the government of the day and clearly stated which political party she supported.
The ability of music to convey subtle messages is a powerful tool in any society but in small countries this influence is magnified. Astute politicians well know this communications tool with its double edged sword of help and hurt. In our region, music has long provided an opportunity for social commentary, ridiculing, criticizing and highlighting some of our worst traits as a people.
Trinidad with Sparrow and Jamaica with the 1970s icons of acerbic social commentary, Bob Marley and Peter Tosh, were well ahead of the music of sleepy Nassau musicians who were busy singing love ballads, influenced by the pervasive Yankee Dollar.
Eventually, Eddie Minnis and Pat Rahming paved the way by creating songs which used laughter as social commentary, but it was not until the hard fought 1992 general election - which had as a major pillar of contention the monopolistic, partisan and hated practices of the government owned and controlled radio station - that the power of political social commentary in music was felt.
The 1993 liberalization of the broadcasting airwaves by the new FNM government ensured that never again would the government of the day be the sole determinant of what was to be broadcast.This liberation also ensured an explosion in creative Bahamian music and talent as our public demanded more than idyllic songs for the tourists.
Fast forward 20 years to the 2012 general election campaign and our country finally had our choice of local musicians prepared to perform and our own songs with which to run our campaigns, inspire our supporters and deride our opponents.
Sad to say, however, our musicians pay a financial price for their participation in the political campaigns as their music becomes integrated into the campaign fabric of a particular party. The party that wins the election will not hire and will not assign engagements to those musicians whose songs are associated with the other party, no matter how talented, thereby depriving them of income. One might say that that in itself is a form of unofficial censorship.
And so, music in The Bahamas is a serious business today. With almost 50 private radio stations, some dedicated exclusively to local and regional music, there are more than enough stations on which Bahamian musicians can have their music played and expect to make a return on their creations.
Then, lest we forget, the explosion of social media through the Internet and YouTube and Facebook, and wireless communications on our iPhones and the over the top services like WhatsApp, ensures that whether the radio stations play a song or not that song will be heard if it has a popular message and a catchy tune. And hear it we did as K.B.'s song 'Jokey leaders' hit the airwaves and was forwarded by us on WhatsApp to people we were connected with over and over again! That brings us to the show down last month when the prime minister apparently branded K.B.'s song as being "negative" about him.
Overnight the rumor mills, the talk shows and the buzz was that K.B.'s song had been banned. We also remembered that K.B. was the one musician who was a constant thorn in the government's side during the heated Junkanoo Carnival debate and its aftermath,clearly not endearing him to the powers that be.
'Jokey leaders' was a fine example of "take that" in the Bahamian vernacular. A talented musician was using his music to express his position on the alien culture and financial debacle of the Carnival. Further, it is fair to say that the lyrics were representative of the general consensus of the majority of Bahamian residents towards the performance of the government to date.
And so how do we come to be speaking of possible government censorship in the 21st century Bahamas?
Largely overlooked in 2009 was the introduction by the FNM government of the new regulatory framework for telecommunications and communications as the two sectors merged into one under the Communications Act 2009 (The Comms Act). The independent and autonomous regulator URCA took over the regulation of broadcasting under a best practices model designed to remove political interference.
Under the 2009 Comms Act, at Sections 60 and 61, it was intended that ZNS become a Public Broadcasting Station which would render it a public information station and remove it from direct competition for private sector advertising with the other radio stations which are not, like ZNS, heavily subsidized by the public purse.
Regrettably, neither the FNM nor the PLP during their times in office have been able to divorce themselves from control of ZNS, and it remains a mystery why the private radio stations accept this unfair playing field even as they struggle for survival.
I submit however, that the airwaves of The Bahamas will not be truly liberalized until ZNS becomes a Public Broadcasting Station. The legislation is in place for URCA to make it happen, the political will is not. We the people must agitate to make it happen. And so, amidst the increasing public furor on the alleged banning of K.B.'s song, URCA issued a public notice on August 31 in which it denied the "reported censorship of a local artist's song" and advised that it "had neither banned nor taken any other action to prevent the airing of any song on any radio station or other content provider".
URCA acknowledged that whilst it was the regulator of the electronic communications sector in The Bahamas, which included broadcasting, its statutory powers, derived from Part 1X of the Comms Act and subsequently amplified by the Code of Practice for Content Regulation, did not give URCA the jurisdiction to censor content prior to its broadcast, so that URCA had no power to"ban" any content.
URCA, perhaps mischievously, then concluded the notice by inviting persons wishing to lodge complaints concerning any breach of the Code by any media content provider to forward their complaints to URCA's Consumer Complaints Department.
Of course, in the interim, the public, remembering the censorship practices of old, began to mouth references to the constitutional right of freedom of expression for all as a defense. And of course, article 23 of our constitution does grant these rights, but article 23 also creates exceptions to the right to freedom of expression or speech, with the exceptions and limitations including public order and public morality and the rights, reputations and freedoms of other persons.
So the question then arises, how far does my freedom extend before the limitations under the constitution kick in?That, of course at the macro level is for case law and the courts. But as one of my learned colleague likes to explain: "Your freedoms end where my rights begin!"
The law of defamation in tort also recognizes the defense and right of fair comment as applied to a holder of public office. And so we come to the issue of URCA's general powers and URCA's limited powers to regulate broadcasts under the Comms Act and in conformity with Article 23 of the Constitution.
Under part 111 of the Comms Act, URCA has general powers to issue regulatory or other measures necessary to carry out the objectives of the electronic communications sector policy. Such regulatory measures have included the Code of Practice for Content Regulation (The Code), finalized in April 2012 after extensive public consultation.
URCA also has wide powers of investigation in the sector including the ability to investigate any alleged contravention of any regulatory measure issued under the Act.
URCA is therefore a powerful regulator, however it is important to note that URCA regulates through the licenses of broadcasters and in this case, the key fact is whether the broadcasters have adhered to the provisions and standards of the Code as they agreed to do in their licenses.
The 80 detailed pages of the Code are described by URCA as having core values reflected in fairness, co-regulation, transparency and the empowerment of the Bahamian people.
The words "co-regulation" and "empowerment" are of particular importance because they signify that URCA is not intended to be the sole arbiter of content regulation standards or contraventions of those standards, and that it is intended that the people are also to take an active role in this exercise.
It is fair to say that the Code is intended to be largely driven by we the people through a self regulation and transparent process exemplified through industry groups and complaints processes to instigate investigations. URCA is to assume the overall dispassionate responsibility for ensuring that it all works as it should.
Section 56 of the Comms Act, in fact, is headed "Limitations of URCA's power" and states that:"URCA must not determine that before program are broadcast the programs or a sample of the programs be approved by URCA or by a person or body appointed by URCA.".
As URCA has no ability to decide in advance whether a song is offensive according to the Code, this allows the song to be played or broadcast and for listeners to react if indeed it is offensive according to our society's norms which should be reflected in the Code.
A complaint from a member of the public, for example, can be based on the fact that a person finds a song offensive because, under the Code it includes : "a matter that is likely to incite or perpetuate hatred against or vilifies any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, age, religion or physical or mental disorder".
The complaints handling process must be broadcast by the licensee to alert the public to the existence of the Code and its complaints procedure at least once a year. The licensee is also required to report quarterly to URCA on complaints received and must maintain records to facilitate investigations by URCA.
Each complaint must of course be investigated objectively and with transparency by the broadcaster and URCA (if necessary) and must be found to have breached the standards of the Code and hence, a license condition. The onus is therefore on the broadcaster not to allow a song to be played the content of which is likely to violate the Code.
One could argue that the songwriter is indirectly controlled because he needs his song to be played in order to receive the financial rewards. He must therefore ensure that the song does not violate the Code or he limits his audience.
If the broadcaster/licensee does not resolve the complaint of a violation to the satisfaction of the complainant, the broadcaster must then refer the complaint to URCA who will carry out its own investigation.
The imposition of a sanction against a Licensee by URCA is a serious matter and can include a direction not to repeat the offending song, a financial penalty of up to 10 percent of revenue, suspension of a license or its revocation.
The Code is expected to be renewed every three years by URCA with the relevant industry group. These consist of representatives from the community who will monitor the society's standards and then help to develop the Code's standards on good taste and decency.
This is to ensure that the standards are reflective of the culture and moral standards of the Bahamian society, acknowledging that what may be acceptable in one country may not be acceptable to the people of another country. Additionally, standards of what is acceptable in taste and decency change over time.
The Code, of course, is relatively new and unknown and has yet to be challenged on a point of law coming out of any URCA decisions. To the best of my knowledge, no song to date has been banned or censored. Certainly K.B.'s song should pass any standards of the Code.
Most insidious as regards censorship is the failure of a broadcaster to play a song for fear of "offending" a politician or public figure and perhaps losing valuable advertisements. That is the old form of censorship which was blatant. It must not be tolerated or encouraged today and it is more difficult to accomplish given the numerous private stations.
Politicians and public officials must grow thicker skins or get out of public life. And they should keep their petulant opinions to themselves in the larger interest of democracy and artistic creativity.
We the people must defend the right of a songwriter to political and social commentary. It was heartening to feel the indignation of the public when it was thought that K.B.'s song had been censored.To allow anyone to be silenced is to allow each one of us to be silenced. It is indeed a very slippery slope. And the public indignation also sends a necessary message to URCA, the custodian of the Code, on the public's level of tolerance as regards the Code's standards.
Click here to read more at The Nassau Guardian
