The Reform of the Law on Artistic & Cultural Associations in Cameroon
Ferdinand Doh Galabe, Esq., BL, LLM
Founder & Managing Partner
The Lawmaker’s Intent
On July 20, 2020, Cameroon’s Parliament voted Law no 2020/011 to regulate artistic and cultural associations. And since it is an established general principle of jurisprudence that the legislator has a public duty to justify the necessity of a bill before it is passed into law, various actors, observers and stakeholders analysed the law to find out Parliamentary (or government) intent. The flip side, however, of this principle is known as the mischief rule of statutory interpretation which is actually a mechanism used by the judiciary to determine the meaning of a rule of law by ascertaining the defect, void, problem or mischief that the rule of law intends to rectify, remedy or suppress. Simply put, the mischief rule is a judicial tool to ascertain the intent of Parliament in passing a specific bill into law. The British Law Commission has asserted its preference for this rule of interpretation over the other two rules of interpretation which are the plain/literal rule and the golden rule of construction of statutes.
In Cameroon parliamentary practice, although bills may be tabled by members of parliament, bills are almost always tabled by the government bench and defended by ministers whose ministries are directly concerned by the bill. In the case of this law regulating artistic & cultural associations, two ministries were directly concerned: the Ministry of Territorial Administration, which oversees associations; and the Ministry of Arts and Culture, which oversees the music industry. It was in the mouth of these statesmen that the intent of the legislator was going to be ascertained.
Cameroon’s Minister of Arts & Culture, therefore, justified the bill on artistic and cultural associations on the floor of Parliament by stating that it was intended to structure Cameroon’s entire cultural and artistic landscape in order to optimize the impact of governmental action, and hence boost the artistic productivity of Cameroon.
Per the Minister, the new law guarantees the structuring of the artistic and cultural movement, and the organization of the art and culture sub-sector into federations, in order to bring together professionals in a collaborative framework within associations by discipline for qualitative and quantitative growth of artistic and cultural production in Cameroon.
The Minister also argued that the new law was needed because of government’s observation of the disorder in the sector caused by the proliferation of conflicting individual artistic and cultural projects which undermined the efficacy of government action.
According to the government of Cameroon, therefore, the law aims at structuring the artistic & cultural sector, optimizing the impact of government action in the artistic & cultural sector, boosting artistic & cultural growth & productivity and, finally, promoting cooperation among artists and professionals in the milieu of arts and culture.
The Minister of Culture’s apology of the new 2020 law falls squarely in the wordings of Section 2 of the new 2020 law which provides that the mission of artistic and cultural associations is to contribute towards the promotion of the spirit of creativity of its members (artists and cultural actors) and to contribute towards the dissemination and preservation of national and universal cultural heritage. Critics and detractors of the new law argue, however, that the leitmotif of government is politics and the move is intended to exercise greater political control over a profession which is not always supportive of the regime.
The Economic Stakes of the Cameroon Music Industry
Perhaps the interest that government has taken in this sector is inspired by the boom of the music industry in neighbouring Nigeria, where in spite of the very little involvement of the Nigerian government so far, the music industry has evolved to become the most vibrant music industry in Africa with a huge economic impact. According to Reuters, the Nigerian music industry’s revenue was US$56 million in 2015, while PwC’s Global Entertainment & Media Outlook 2017-2021 projected that revenue will hit over US$73 million by 2021.
The rise of revenue in the Nigerian music industry is not, however, due to the passing of a law regulating artistic & cultural associations, but the result of a paradigm shift in the supply chain with digital innovation which has driven digital music consumption causing it to far surpass physical music consumption since at least 2013.
The majority of consumers access Nigerian music through on-demand streaming, digital downloads, and digital radio. Besides Nigeria’s almost 200 million population, other factors which have driven growth and productivity in the Nigerian music industry are, first, the new pathways of distribution and marketing of music beyond Nigerian borders, and then the boom of its film industry.
Overall, according to Reuters, the Nigerian media & entertainment industry generated an estimated total revenue of US$4.8 billion in 2015 and roughly US$8.1 billion in 2019. According to the World Bank, Nigeria’s GDP was US$568.4 billion in 2015 and US$448.1billion in 2019, while in that same year Cameroon’s GDP was US$38.76 billion. This figure highlights the economic growth potential of Cameroon more than it does its economic performance.
The Scope of the New Law
Getting back to the new law, the first thing to note is that it does not regulate arts and culture per se, it only regulates artistic and cultural associations, that is, the associative activities of professionals of the arts and culture sector who have joined an artistic and cultural association. Moreover, the new 2020 law clearly indicates that it works in tandem with the 1990 law on freedom of association (as amended in July 1999 & July 2020), implying that associative members of artistic & cultural associations must also comply with the 1990 law on freedom of association, in addition to complying with this new law.
Other significant laws which touch on different aspects of artistic and cultural law include in the main, the Millennium Law on Copyright & Neighbouring Rights and its implementing text, Decree no 2001/956/PM of November 1, 2001 signed on December 19, 2001. Other international laws under the WIPO and the AIPO equally touch on various aspects of artistic and cultural activities.
The Old Law & Previous Practice
Prior to the entry into force of the new 2020 law, Decree no 79/390 of September 22, 1979 instituting the Cultural Charter of the (erstwhile) United Republic of Cameroon regulated “cultural associations”, while Section 5(3) of the 1990 law on freedom of association (as amended in July 1999 & July 2020) provided for and continues to provide for the de facto existence of “socio-cultural associations” also known as informal or de facto associations. Although these are not specifically defined by law, they are distinct from “cultural associations” as the former do not require declaration or state authorization.
Indeed, Section 2 of the 1979 Decree, which was not repealed by the 1990 law, required the declaration of “cultural associations” as well as their approval by the Minister of Territorial Administration, after consulting with the Minister of Culture. Moreover, per Section 3 of the 1979 Decree the articles of association of cultural associations were bound to be inspired by the model articles of association drafted by the Minister of Culture. The new 2020 law has repealed the 1979 Decree, and the “cultural association” has been supplanted by the new “artistic and cultural association”.
What is a Cultural & Artistic Association Anyway?
That said, Section 2 of the 1990 law on freedom of association (as amended in July 1999 & July 2020) provides a very broad definition of an association as persons who pool their knowledge or activities for a not-for-profit undertaking. Meanwhile Section 2 of the new 2020 law defines an artistic and cultural association as “an agreement whereby several people undertake to promote the spirit of creativity, the dissemination of culture and the preservation of national and universal cultural heritage by organising artistic and cultural activities.” It is the combination of the provisions of these statutes that define what should be understood as an artistic and cultural association in Cameroon.
Under international human rights law, at least two people suffice to form an association, and the new law has not derogated from this rule. It will appear, per the wordings of the law that the conditions laid down in Section 2 of the new law to qualify as an artistic and cultural association are cumulative and not alternative. Applicants must therefore demonstrate that their association has at least two adherents, that their group is not for profit, and that they have undertaken, as evidenced in their bylaws and internal regulations, to promote the spirit of creativity, disseminate culture – Cameroon culture, African culture or any culture? We are not told – and finally, that their association is established to preserve national and universal cultural heritage by organising artistic and cultural activities. All these concepts are laid down in law but no effort is made to define them, such that the interpretation of the meaning of these provisions is left in the hands of administrative authorities in charge of implementing the law whom the people can only hope will exercise administrative discretion judiciously.
Establishing an Artistic & Cultural Association
In principle, the procedure to establish an artistic and cultural association involves, first of all the constitution (formation) of the association and its declaration (notification) with the competent authority (Senior Divisional Officer) and then its approval by the Minister in charge of culture, where the declarant is a domestic association. In the case of foreign associations, the procedure is slightly different, that is, the foreign association must first seek authorization from the Minister of Territorial Administration to set up shop in Cameroon upon the recommendation of the Minister of External Relations before proceeding to obtain the abovementioned approval from the Minister in charge of Culture. The approval, which is personal, unassignable and untransferable must be renewed every five (05) years.
The new law has provided for tight administrative deadlines to prosecute requests for approval and authorization of artistic and cultural associations and in case of inertia of the competent authorities, the requests are considered by law as granted. Otherwise the competent authorities must, whenever they reject requests for authorization or approval, give reasons for rejection. The new law does not lay down the filing formalities and requirements which are to be laid down later by an instrument of the Minister in charge of Culture. This practice of delegating law-making powers to the executive is enshrined in the Constitution of Cameroon.
From the wordings of the law, it is a certainty that prosecuting the declaration and approval of an artistic and cultural association will be hectic. While the legal framework is yet to be completed, for the time being, it is apposite to state that candidates will have to be looking at the preparation of bylaws and internal regulations, minutes of constituent meetings which follow a specific format also, preparation of annual activity reports and annual action programmes, retaining auditors, etc.
Artistic & Cultural Movements
Moreover, the new law largely takes up the structure provided by the now repealed Decree no 79/390 of September 22, 1979 instituting the Cultural Charter of the (erstwhile) United Republic of Cameroon and provides for four (04) different structures called artistic and cultural movements. These are companies, unions, guilds and federations, around which members of these artistic and cultural associations may gather to undertake their activities.
Under the now repealed 1979 Decree, there were groups of at least three associations at the local level known as companies; there were groups of companies of associations at the sub-divisional level known as unions; there were companies of associations originating from at least two different sub-divisions from the same division at the divisional level known as unions; there were at the provincial (regional) level guilds; and at the national level there were federations.
These four (04) structural entities of artistic and cultural movements have been transplanted from the 1979 Decree into the new law with slight differences. Moreover, the formation of all these different entities is subject to the approval of the Minister in charge of culture. The unwarranted result of this structural set up is that these artistic and cultural associations may operate solely within their various territorial jurisdictions. In addition to that, the new law requires members of artistic and cultural associations who intend to organise an international artistic and cultural event to seek and obtain a prior authorisation from the Minister of Culture. This equally applies to anyone who intends to organise such events if artistic and cultural associations will be involved or participate in such events.
The Right to Freedom of Association
At this level, it is apposite to note that Sections 1 and 3 of the 1990 law on freedom of association expressly provides that membership in an association is optional and persons who have become members of an association shall always be free to leave at any time. Article 20(1) of the Universal Declaration of Human Rights (1948) and Article 10(2) of the African Charter on Human & People’s Rights (1981), both provide that, no one may be compelled to join or belong to an association. This implies that the whole of the new law will fall if the intent of the legislator is to restrict involvement in certain cultural and artistic activities solely to those who will be members of these associations. This is besides the fact that the scope of the law doesn’t cover artistic and cultural activities as a whole, but touches only on artistic and cultural associations specifically. A contrary interpretation will be subversive of the purpose of the aforementioned provisions of international human rights law.
Section 22 of the new law which provides for the bylaws of artistic and cultural associations to comply with standard bylaws approved by Order of the Minister in charge of Culture, does not only violate Section 9 of the 1990 law on freedom of association which provides for the free administration of associations, but is equally at variance with Article 3(1) of the ILO Convention on Freedom of Association & the Protection of the Right to Organise (1948/50). This article provides that organisations shall have the right to draw up their own constitutions and rules and to organise their administration and activities. Public authorities are requested by the Convention to refrain from interfering with these rights. This is one area anyone would have expected the legislator to tread with caution.
Similarly, Article 4 of the International Covenant on Economic, Social & Cultural Rights of December 16, 1966, ratified by Cameroon on June 27, 1984, provides that, “the States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” Prior to the 1966 Covenant, the ILO Convention on Freedom of Association & Protection of the Rights to Organise of July 9, 1948 required public authorities to refrain from any interference which would restrict freedom of association rights or impede their lawful exercise. No matter the purpose of the new law, its provisions should be read in line with those of the 1948 ILO Convention, since international law trumps domestic law per the Cameroon Constitution.
Furthermore, the Guidelines on Freedom of Association and Assembly of the African Commission on Human and Peoples’ Rights adopted at the Commission’s 60th Ordinary Session held in Niamey, Niger, from 8 to 22 May 2017, further to Resolution 319 (LVII) 2015 which mandated the Study Group on Freedom of Association and Assembly to develop the said guidelines, under the supervision of the Special Rapporteur on Human Rights Defenders in Africa, developed in pursuance of the interpretative powers of the Commission under Article 45 (1) (b) of the African Charter, agree totally with this analysis according to which the bylaws and rules governing the management and administration of associations should not come from government.
Governance of Artistic & Cultural Associations
Chapter 5 of the new 2020 law regulates the governance of artistic and cultural associations. Ironically, Section 33 (1) mirrors the Section 9 of the 1990 law on freedom of association and provides that artistic and cultural associations are administered and managed freely in conformance with laws in force.
As abovementioned, the legislator has failed to take cognizance of the fact that a free management and administration of association implies that the bylaws and internal rules and regulations of these associations cannot be subjected to model bylaws and internal rules and regulations drafted by the Minister in charge of culture, as provided by Section 22 of the new law.
A notable provision of the law peculiar to governance of artistic and cultural associations is the introduction of mandatory internal and external auditors. The artistic and cultural association must retain the services of an approved auditing firm or competent public services for external auditing. These associations are equally required to draft activity reports and action programmes.
Section 34(2) of the new law equally lays down mandatory clauses which must be included in the bylaws and internal rules and regulations of an artistic and cultural association, including clauses relating to management staff, financial provisions, internal & external auditing, annual activity reports and annual action programmes.
Other relevant aspects of governance include disqualifications of certain categories of persons from being involved in the management of artistic and cultural associations as well as incompatibilities.
The new law equally sets mandatory annual reporting standards relating to changes in management and administration, changes in bylaws and internal regulations, and filing of annual activity reports, activity programs and financial statements. This accountability to the State is further reinforced by the legal provision that the Ministry of arts and culture has oversight on artistic and cultural associations and may suspend or withdraw their approvals or dissolve groups or file criminal actions against the managers and administrators of artistic and cultural associations in certain circumstances. The Minister of Territorial Administration may equally dissolve artistic and cultural associations which drift from their objects or infringe laws in force. The law provides for remedies before the administrative courts in case of abuse of power.
Participation in General Interest Missions & Funding
The new law states that federations of artistic & cultural associations may be entrusted with general interest missions to assist the State to implement State policy in this sector. This takes the form of a partnership agreement (including specifications) signed between the Ministry in charge of culture and federations, and in exceptional circumstances, with artistic and cultural associations.
Concerning the financing of artistic and cultural associations, the new law mirrors the provisions of Section 11 of the 1990 law on freedom of association which proscribes associations which have not been recognized by presidential decree as serving the public interest from receiving funding in the form of donations from private persons or subsidies from public bodies. The only exception to this rule relates to funds received by public interest groups and federations from international entities to which they are affiliated. These provisions weaken the capacity of these associations to fully deploy their wings and is anathema to the spirit of freedom of association under international human rights law.
Indeed, these types of laws have been criticized by the Guidelines on Freedom of Association and Assembly of the African Commission on Human and Peoples’ Rights adopted at the Commission’s 60th Ordinary Session held in Niamey, Niger, from 8 to 22 May 2017, further to Resolution 319 (LVII) 2015 which mandated the Study Group on Freedom of Association and Assembly to develop the said guidelines, under the supervision of the Special Rapporteur on Human Rights Defenders in Africa, developed in pursuance of the interpretative powers of the Commission under Article 45 (1) (b) of the African Charter.
The lawyers of Dayspring Law Firm have assisted actors in civil society as well as those in the artistic and cultural milieu to register several dozens of associations. We have advised civil society organisations on the law of associations and freedom of association in general. We have helped them draft and prepare required documentation to register their organisations or get them approved by different public authorities. We have also represented clients before administrative authorities and courts in the framework of disputes between civil society organisations and the State. Our practice in this area cuts across NGO practice, foundations, de facto or informal associations, international associations, religious associations, sports associations, common initiative groups, cooperative societies, socio-cultural associations, political parties, trade unions, public interest groups, etc.