ON THE WRONG SIDE OF THE LAW – THE ROCK COMMUNITY -v- THE SECURITY AMENDMENT ACT

OsbourneOzzyFrom Elvis Presley to the Beatles and Behemoth, rock musicians have found themselves on the wrong side of the law. Body shots of Elvis Presley were restricted to above the waist because his hip swinging was considered too suggestive for the conservative society. Today you will hardly be penalized for this but gory, obscene and ‘satanic’ album art, lyrics and posters most definitely will.

Now for the sake of my own freedom, please feel free to scour the internet for an apt illustration of the goriest and most obscene album art done by bands like Cannibal Corpse and their ilk. Yes sir, Death Metal Bands are notorious for these kinds of artistic expression. Now for the better informed individuals you will understand the intellectual and artistic value of the import of death metal. But for the wider public including the criminal justice system, won’t be averse to being freaked out and generally throwing you into gaol for causing public fright and representing a moral outrage.

A while back a friend of mine told me how they had to come up with a poster designed in milder vein in order for them to promote their Halloween rock event. Obviously if they’d published posters denoting an occult innuendo they’d  have to forget about any hopes of getting funding for the event. But with the signing of the new Security Laws Amendment Bill 204 into law, scaring away potential sponsors will be the least of your worries.

The amendment act has inserted a new section 66A whose import is to penalise anyone who publishes or distributes obscene, gory or offensive material to the tune of a fine of upto one million and prison sentence of up to three years. For media enterprises the fine goes up to 5 million.

Now you must have been thinking that these new amendments are targeted at media houses that publish pictures or shoot videos of dead bodies, maimed and disfigured people and the like. But your mind will change once you consider the legal definition of the word ‘publish’. And since we are only a few days from the impending release of local death metal band ‘In Oath’s single off their upcoming album, I figure this is an opportune occasion to know where we stand.

So the Penal code which is the particular act affected by this amendment peculiarly doesn’t define the term publish, neither does the amendment act. So my attention was drawn rather to the Interpretation and General Provisions Act. It defines a publication as any written or printed matter, recording or any medium where words or ideas may be communicated. You read that definition in full and you just realise its hunting season as far as law suits and prosecutions are concerned. It captures everything from band t-shirts, promotional posters to audio recordings and music videos.

Being new legislation there are probably no domestic judicial interpretations of what is considered to be obscene, gory or offensive. And in the interest of time I went ahead and looked at American cases which won’t be far removed from what we consider to be obscene or offensive. See Miller v. California 413 U.S. 15 (1973).

The American legal standard is tripartite. And for obscenity then the court will consider the following:

  1. Whether in the eyes of the ordinary reasonable person it is of prurient interest (i.e. encouraging an excessive interest in sexual matters)
  2. Whether it depicts or describes in a patently offensive manner sexual conduct defined by statute. This test addresses itself to statutes like the Sexual Offences act, which proscribes acts like rape, sexual assault and the like. This is specifically Marilyn Manson territory fellas.
  3. This one is a matter of strong debate and where you would possibly have the case turned in your favour. It is whether the work lacks any serious literary, artistic or scientific value. Of course you wouldn’t have any work protected by copyright if it lacked any serious artistic value. So you see why I say this is where you would have hopes of tearing the prosecution’s case to shreds.

Being a fringe cultural scene I doubt the goings on of the rock subculture will attract the attention of the DPP unless you have the likes of John Cardinal Njue and other religious organisations breathing down your neck. The more notorious centres of interest would be major media publications like newspapers, documentaries, news features and blog posts that glorify the stretched idea of what it means to be a socialite and people like Njoki Chege. But as a member of the rock community and since I bear the warmest affectations for you people, the least I can do is look out for your interests and warn you that the days of free un-circumvented artistic expression are gone.

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