On May 27, 2022 the Baderation event in Guyana, headlined by Jamaican dancehall artiste Skeng (Kevaun Douglas), was disrupted by gunfire and bottles turned missiles. In response, it appears that the Guyanese Government will no longer issue permits to Skeng or other artistes whose lyrics include violence and public disorder to perform in Guyana.

Unfortunately, this is not an isolated response. The performance ban, denial of entry, and deportation of Jamaican dancehall artistes, long used by governments across the globe, is now commonly deployed by our sister countries in the Caribbean Community (Caricom).

In 2014 Jamaican artiste Sparta Lee was denied entry to Dominica, where he was set to headline a concert, on the basis that his presence or performance raised concerns for public safety. In 2010, a performance ban was issued against Vybz Kartel in Saint Lucia and Barbados, citing his lewd lyrics and raunchy performances. In 2009, Bounty Killer was denied entry to Trinidad and Tobago, allegedly without reasons, while Vybz Kartel, his reputed rival, was allowed to enter and perform. There are many more examples.

Prime Minister Andrew Holness calls the bans an embarrassment to Jamaica. Though he might be right, these bans might also be a violation of the rights of Jamaicans.

The discourse surrounding this issue has been largely moral-based. One side focuses on the salacious lyrics and glorification of violence, public disorder, and misogyny as part of popular Jamaican music; the other accepts the music as a vibrant part of our culture, representing a potent tool for socio-political commentary forcing re-examinations of how we live.

The truth lies in the middle, but the hubris of morality will prevent its finding. However, there might be another way. As regional integration intensifies within the legal framework of the Revised Treaty of Chaguaramas (RTC), it might be appropriate to discuss this issue through a legal prism of rights, due process, and good governance.

CARICOM LAWS AFFECTED

Caricom, the regional institutional response to the current international trade regime, aims to create a true single market and economy across the Caribbean to bolster intraregional trade.

Private actors are essential to Caricom’s success. As a result, private actors — individuals and companies — are given certain fundamental Caricom rights, like freedom of movement and freedom of services, among others. All of this is undergirded by the Caribbean Court of Justice (CCJ) to resolve disputes when we believe that our Caricom rights are violated.

The CCJ has already determined that certain core legal principles and concepts are a part of Caricom law that shape our enjoyment of fundamental Caricom rights. These are:

1) fundamental Caricom rights should be broadly interpreted;

2) limitations on fundamental Caricom rights should be narrowly interpreted;

3) limitations on or denial of any fundamental Caricom right can only take place within the framework of the Revised Treaty of Chaguaramas (RTC) and other Caricom rules (together “Caricom law”);

4) Caricom people should be given written reasons for the denial of their Caricom rights; and

5) such individuals should have recourse to appeal that denial.

The question that follows: Is the performance ban or denial of entry levied against Jamaican dancehall artistes compliant with Caricom’s freedom of movement and freedom of services?

Caricom law guarantees to Caricom nationals the freedom to provide and receive services across borders. So a Jamaican service provider, like a lawyer, banker, musician, or dancehall artiste, is entitled to provide his or her services to patrons in other Caricom countries. The service can be supplied virtually or in person.

In the Cabral Douglas case in which Jamaican dancehall artiste Sparta Lee (Leroy Russell) was denied entry, the CCJ found that Sparta Lee, who was to headline a festival, was a service supplier under Caricom law. Specifically, the court said: “It was clearly Mr Russell [Sparta Lee] and his support staff who were the intended suppliers of services … they were entertainment services suppliers of one member State (Jamaica) … in the territory of another member State (the Commonwealth of Dominica).”

It follows that a Jamaican dancehall artiste, like Skeng, who travels to another Caricom country to perform at a concert is protected by the freedom to provide services guarantee.

Freedom of services is closely associated with the freedom of movement under Caricom law. This is only common sense. Freedom of services would have little value if Caricom nationals could not freely travel across the region to supply and receive services.

The CCJ made this clear in the Shanique Myrie case in which a Jamaican was deported from Barbados. The court said: “It is clear, therefore, that in certain approved sectors, nationals of a member State who supply these services must in principle have the right freely to enter any other member State in order to ply their trade; but… also nationals of a member State desirous of receiving such services in another member State must be allowed to enter the latter State in order to receive that service without being obstructed by unreasonable restrictions.”

In a number of other cases the CCJ elaborated on the meaning and scope of Caricom’s freedom of movement. In Caricom law, “subject to such conditions as the public interest may require”, a Caricom national has the right to enter a member State, and the right to move about in and remain in that member State for at least six months. The right to enter, move about, and to remain must be “definite”, “hassle free”, and “without harassment or imposition of impediments”.

“[S]uch conditions as the public interest may require” refers to the limitations on the fundamental Caricom rights. Generally, member states may limit the rights, among other bases, “to protect public morals or to maintain public order and safety. Specifically for free movement, member states can refuse entry to “undesirable persons” and people likely to become a “charge on public funds”.

A person would be classified as undesirable if “on arrival [the community national is] a genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society”. Whether a person is likely to become a charge on public funds is determined by whether the person has or has access to sufficient funds. All these limitations must be narrowly construed and the member State has the burden of proving which limitation applies.

PERFORMANCE BAN

A performance ban against Skeng would have the effect of preventing him from supplying his entertainment services. The primary question is whether the ban is allowed by the limitation to protect public morality and public order.

A few sub-questions follow: Is it right to say that salacious lyrics undermine public morality? Is it true that lyrics about violence and rebellion against Government harm public order? If so, is a performance ban the best way? Is it not too draconian? Shouldn’t adult concertgoers be left to decide for themselves what sort of lyrics they wish to enjoy?

In effect, a performance ban undermines the agency and freedom of expression of adult concertgoers. If the concern is for exposing minors to such music, wouldn’t it be more appropriate for government ministries, in consultation with civil society, to implement a parental rating system for concerts based on the line-up of artistes? A rating system protects minors and respects the agency of adults.

DEPORTATION ORDER

A denial of entry or deportation order against Skeng has the effect of preventing him from enjoying his Caricom freedom of movement and also his freedom of services, if he intends to perform.

The primary question here is: Is the denial of entry or deportation allowed by the limitation to protect public morality and public order or to prevent undesirable or indigent people from entering the country?

For a service supplier, a denial of entry or deportation order could undermine two fundamental Caricom rights. Is this use of power akin to using a nuclear bomb to blow up a wooden house?

Since it is highly unlikely that a headline performer would become a charge on public funds, the real question is whether the performance of lyrics by Skeng or any other dancehall artiste about violence poses a “genuine, present, and sufficiently serious threat affecting one of the fundamental interests of [Guyanese] society”. The answer is neither simple nor clear.

DUE PROCESS

Did the Guyanese Government give written reasons to Skeng justifying the performance ban? How long do these government measures remain in effect? In addition, is there a review mechanism in place to allow Skeng to appeal against the performance ban? If so, what does this review mechanism look like?

These are serious legal and policy questions that have implication for regional integration, cultural exchange, vibrancy of socio-political commentary, and even constitutional rights. To answer them, a probing review is necessary, not a knee-jerk reaction. Our governments should be made to answer them in a mature and responsible way.

CCJ GETS TO DECIDE, NOT JUST THE POLITICIANS

These government measures, in the context of Caricom, raise a plethora of legal questions, many of which require thorough legal and policy analysis. It is not simply about shutting down the concert, silencing the ‘boogooyaga’ music or rebellious socio-political commentary. It is about respecting Caricom laws, the rule of law, due process, and the fundamental economic rights of Caricom nationals. It is about finding the right government measure that appropriately balances competing interests.

A purely political response to a perceived problem oftentimes leads to overcorrection, which in turn creates other problems.

In this context, a performance ban or denial of entry order might be an overcorrection to the perceived problem of salacious and misogynistic musical performances, leading to the derogation of fundamental economic rights (freedom of movement and freedom of services) and possibly constitutional rights (freedom of expression).

In our system of government, an independent judicial body gets to scrutinise government measures to ensure that they are fit for purpose and do not undermine other rights.

This is where the CCJ comes in. When Myrie was deported from Barbados, the CCJ reviewed the deportation and found that it was unlawful because her Caricom freedom of movement was violated. So, as it was for Myrie, so it should be for Skeng or any other dancehall artiste.

Performance bans, denial of entry, or deportation orders against Jamaican dancehall artistes because of lyrical content should be scrutinised by the CCJ. This is how our system of government tests the appropriateness of such measures.

In the Myrie case, the CCJ made it clear that it had a role to play in the shaping of public policy insofar as the RTC is implicated: “The scope of public policy… which is used as a justification for derogation from the fundamental principle of freedom of movement and hassle-free travel of community nationals cannot wholly or unilaterally be determined by each member State without being subject to control by the major community organs, in particular the conference and ultimately by the court as the guardian of the RTC.”

So the question for the CCJ is whether the reported Guyanese performance ban against Skeng in response to the May 27, 2022 incident at the Baderation event is consistent with Caricom law.

Since the CCJ only acts on cases properly brought before it, the performance ban and denial of entry order remain potent tools that Caricom countries can use to silence Jamaican dancehall artistes.

Dr Neto Waite is an attorney-at-law and a lecturer at The University of the West Indies. Send comments to the Jamaica Observer or prince.waite03@uwimona.edu.jm.