Nudity? It is Artistic Expression and Free Speech (part I)
On 15th April 2012 Fas Fas hosted the Nudes 2012 organized by Ronex Ahimbisibwe. In our interview Ahimbisibwe averred that the objective of the show was to demystify the human body; in an interview with the press Robinah Nansubuga, the Manager FasFas, said nudity is a form of art that should not be a subject of shame.
By Angelo Kakande F.J 2012
This exhibition came twelve years after The First Exhibition of Uganda Artists on “The Nude” 2000 (Nude 2000 hereinafter) which was hosted at the Nommo Gallery on 4th – 18th September 2000. The show was organised to free the naked body from continuous abuse and stigma. Nude 2012 also came eleven years after The Nude 2nd Annual Exhibition 2001 (Nude 2001) hereinafter) which was hosted at the Nommo Gallery on 17th – 30th September 2001. Captured in bold in the catalogue, the objective of Nude 2001 was to “help the public go learn more about the anatomy, the beauty of the body and free the mind from unnecessary misconceptions and to upraise the level of art appreciation” (Mutungi 2001, n.p).
Put simply, Nude 2012 shared with Nude 2000 and Nude 2001 the objective of salvaging the human form and freeing it from any pornographic connotations. The three exhibitions served to demystify the naked human body emphasising what Kyeyune (2000,n.p) called its aesthetic appeal.
In this three-part essay I look beyond the claim for the aesthetic appeal. I attend two ways in which the production and circulation of the nude in contemporary Ugandan art[i] in general and nude exhibitions in particular fuses the line between aesthetics and pornography; art and non-art.
I use evidence from three nude exhibitions, decided court cases, the press and interviews to demonstrate that the nude shows present an opportunity to artists to speak the unspeakable. However located in an environment characterised by selective sanctioning and a hybrid of free speech and constrained freedoms (Tripp 2010), the artists have had to move cautiously. In the middle of this caution the Nommo Gallery abandoned the nude shows in 2001; FasFas Gallery has had to alter visual strategies as a way out.
I show that the production of nude art in Uganda has moved from the predictable search for nakedness which borders on vulgarity into a complex strategy exploring the wider demand for pornography and the State’s inability to enforce a strict legal regime against the consumption of pornography. Their visual productions have slipped between pornography and nudity, political comment and aesthetics. Unable to fix them to either of the categories the State has failed to clamp down on them; the artworks have eluded total censure.
Nudity: is it freedom of artistic expression or immorality
Given the centrality of the life class (and study of anatomy) in the teaching of Contemporary art in Uganda, the production of nude is not uncommon. Life drawing (currently called drawing general) is a core course which every art student must pass before graduating with a Bachelor’s Degree of Makerere University (and this is the case in other institutions where contemporary art is taught).
In our interview Ahimbisibwe noted that he was exposed to half-clothed models during the life class. He is correct. Half-clothed and un-clothed female and male models have been used during drawing sessions since the 1940s when Margaret Trowell sent her first student, Gregory Maloba, to the Medical School for drawing lessons. Since the 1990s the unclothed model has been rare in the life class at Makerere University. This change has been caused by financial constraints.
The Collins Concise English Dictionary (2008, 1142) (the dictionary hereinafter) states that the word “nude” comes from the Latin nudus. It refers to “a naked figure, esp. in painting, sculpture, etc”. The dictionary states that nudity is a state or fact of being nude; nakedness. Stated differently, nude and nudity are descriptive words referring to an unclothed figure as seen in works of art and design. The dictionary therefore confers an aesthetic dimension to the nude and nudity. Clearly this definition does not problematize nude and nudity.
The dictionary also describes nude as a state of being “completely unclothed; undressed… 2 having no covering…” Many languages in Uganda take this translation. Literally naked, nakedness and nudity mean obwereere in Luganda; it means busya in Runyankore (spoken by the Banyankore). Philip Kwesiga was alive to these two and related translations when he painted his Busya [Naked]. What is not so obvious in Kwesiga’s painting is the fact that this meaning is problematic: it is embarrassing and a taboo for one to appear naked in the public space; it is illegal. For example Section 81(2) of the Prisons Act, 2006 provides that “stripping a prisoner naked….is prohibited”. Section 81(2) of the Police Act, 2006 has a similar prohibition.
Suggesting that it is not abnormal to be naked, Mutungi (2000,n.p) wondered why we get embarrassed “when we look at our [naked] bodies”. In 2000 Kyeyune answered this question. He argued that our socialization “forbids us from exposing our [naked] bodies publicly”; the public display of nakedness represents vice and immorality (Kyeyune, 2000, n.d).
Obviously Uganda has no single voice on this matter. For example, pictures of naked Bagisu men dancing along urban streets during their circumcision rituals would be unsightly in Ankole and Buganda where Mutungi and Kyeyune hail from.
However they are not at all offensive in Mbale among the Bagisu. In effect the culture of the Bagisu cannot, and does not, forbid them from exposing their naked bodies publicly at least during circumcision. In fact pictures of naked Bagisu men, painted with all sorts of concoctions, have been regularly published by the print and electronic media to celebrate Uganda’s cultural diversity.
In this context it become difficult to estimate who do not state who constitutes Mutungi’s “we” and and Kyeyune’s “us” as a subject.
Nevertheless Mutugi’s and Kyeyune’s subjects help us to understand who constitutes the public in Uganda’s cultural discourse. In The New Vision , published on 20 September 2000, it was in the public interest for the editor to publish a full-color image in which the Australian police chased a naked man who had invaded stadium to disrupt the women’s football semi-final match between Brazil and Australia[ii].
Again on the 14 September 2000 Daily Monitor published a picture of a semi-clothed female protester arrested for disrupting the World Economic Summit. Probably these protesters had gone beyond free speech and political expression to public nuisance and outrage. The print media seems to have published these incidents to expose an unsightly act: an outrage to the educated world citizenry which watched the football match.
It is my contention then that arguably Mutungi’s “we” and Kyeyune’s “us” generally include the elite, educated public whose tastes the newspapers, TVs and galleries in Uganda cater for. It is this public whose “viewing situations” (Nead, 1992, 91) the State often regulates by policing the boundaries of cultural distinction between obscene pornography on the one hand and artistic expression on the other.
This position creates challenges for the use and mass-circulation of completely unclothed figures in art. I contend that the press faced this challenge. For example at page 18 of Daily Monitor published on 1 September 2000 this challenge became evident. The author published a commentary on Nude 2000. He remarked that “…several pieces with vivid shapes of both men and women naked…” were exhibited. To accompany the article, and also to confirm his point, he used Samuel Kakaire’s painting, called Sistine Chapel. Supporting its body with its left arm, it folds its right hand backwards to allow the viewer access to the display of its heavily muscled anatomy.
Now, it is my view that there was nothing offensive about this painting. I concede that the painting celebrates essentialised masculinity represented by a nude male figure but I am not prepared to admit that it offends morals. However there was a problem with the section marked by large penis.
In fact it was by far less exaggerated than the three penises in Kakaire’s Karamojong Egotism which was also exhibited in the Nude 2000 show and was later published on page 17 Daily Monitor of 7 September 2000. In fact in The New Vision run a commentary on the show accompanied by a picture of the masculinised Kakaire’s Sistine Chapel set in contrast with Jacob Odama’s In the Salon depicting a nude, standing, female figure arranging her hair. This was part of its campaign to give its readers access to information.
Daily Monitor had mounted a similar ambitious campaign in the early 1990s. Government responded by denying it revenue and affecting its growth and profitability in the period 1993-1998[iii]. Government also relied on repressive colonial laws on sedition[iv] and publication of false news to shield itself from criticism. It took court battles, like Charles Onyango Obbo & Anor v AG[v] for the situation to change.
The situation was further complicated by the absence of a law giving effect to Article 41 of the 1995 Constitution which grants access to information in the hands of government. This law, the Access to Information Act (2005), was enacted after pressure from a Private Members Bill. As such by 2000 Daily Monitor was cautious leaving The New Vision as the most serious forum for criticising government programs and actions until 2006 when its Chief Editor, William Pike, was replaced by the pro-NRM Robert Kabushenga[vi].
Most importantly, and as Enock Kimbowa explained at page 17 of Daily Monitor published on 7 September 2000, Kakaire’s Sistine Chapel contrasted sharply with its Italian precedents, Micheal Angelo Buonarroti’s works in the Sistine Chapel. Buonarroti was slightly because the artist kept the “private parts out of sight”[vii]. As a result, although largely phallic and innocuous, Kakaire’s Sistine Chapel was considered offensive by the editor. He thus edited it cropping out the penis leaving a black circular patch imposed on the painting.
Clearly then, the Nude 2000 raised interesting legal, economic, moral and political questions on the function of nudity and a nude.
Freedom of expression
Now, it is criminal to produce, exhibit, publish or broadcast pornography and obscene drawings, prints, paintings, printed matter, pictures, posters, emblems, photographs, cinematograph films or any other objects which tend to corrupt morals in Uganda. The law limits the freedom of expression guaranteed Article 29 of the Constitution of the Republic of the Constitution of Uganda.
It can be stated with certainty that the right to freedom of expression is not absolute. It can be limited under the law although it cannot be impaired under conditions which cannot be demonstrably justified in a free and democratic society[viii]. This is the combined effect of Article 29 of the 1995 Constitution of Uganda and, among others, Section 7 of the Electronic Media Act Cap. 104, Section 3 of the Press and Journalist Act Cap. 105 and Section 166(1)(a) and (c) of the Penal Code Cap. 120.
As it was observed by the late Mulenga JSC[ix] in the case of Charles Onyango Obbo & Another v AG[x] the Constitution of Uganda does not define what freedom of expression means or give its scope. To fill this gap, Mulenga JSC read and adopted the definition provided in the Uganda’s 1962 Constitution which is reflected in International and Regional human rights law. He then defined, at page 8, and 11, freedom of expression as holding, receiving and imparting all forms of opinions, ideas and information. He argued that this definition does not exclude opinions, ideas and information which are controversial, erroneous or unpleasant as long as they are expressed within the law. Byamugisha Ag. JSC observed, the right must be enjoyed without offending public morality. As Mulenga JSC held, the onus is on the state to prove that any limitations imposed are justifiable[xi].
I concede that this position remained unclear until the Onyango Obbo case. This uncertainty may explain the caution and the ambivalence with which the editor of Daily Monitor approached the publication of Kakaire’s Sistine Chapel. I suspect he initially considered the painting capable of offending the morals of his readers’ and hence constituting a crime under the law. He probably later changed his mind when he realised he had impaired an aesthetic statement; a work of art. I have not come across a decision whose facts are immediately related to Uganda’s contemporary art/design.
A South African case
However in the case of Roy Stephen Curtis v Ministry of Security & Ors[xii] the petitioner had been arrested and charged for production and possession of sexually explicit video footage. The matter was referred to the South African Constitutional Court to decide whether among others, the trial did not infringe on the accused’s freedom and speech and artistic expression.
Mokgoro J traced the colonial, and imperialist, origins of the definition and crime of indecency and how it was inherited in the postcolonial (and post-apartheid) Republic of South Africa. He observed that by 1995 this crime had outgrown its colonial moralism and Common Law legacy and gained a specifically political dimension. In the process its definition gained a “sweeping ambit” for which Courts struggled to find scope and objective test. The question for Court then was to determine if it comported with the freedom of expression guaranteed by the Constitution. In deciding this matter Court addressed itself to a more specific question of whether “sexually explicit material” was a category of speech and expression protected by the Constitution” and if so whether the possession of sexually explicit material is protected under free speech?
Arguing that rights guaranteed by the Constitution of South Africa can only be limited outside the limitations imposed by the limitation clause in the country’s constitution (which is materially similar to Article 43 of the Constitution of Uganda), Modgoro J. found at page 17 that
… the freedom of artistic creativity would be seriously undermined if it did not encompass the right of individuals to unhampered access to sources of artistic and intellectual inspiration, including (or, one might say, especially), those expressions which convey sentiments that are threatened with suppression by the state or with marginalisation in civil society, because they are deemed dangerous, offensive, subversive, or irrelevant.
He then held at page 21 “that sexually expressive speech is subject to the protection of …the Constitution, and that such protection must necessarily extend to the right to possess such material” (my emphasis). I am therefore of the opinion that in the wake of this decision the law must not gag free artistic expression under the guise of protecting morality.
Such sanction is very wide: it denies the right to access information which is sexually explicit; it inhibits the right to free speech and artistic expression. Instead, the law must apply the limitations imposed by the constitutional limitation clause to protect the vulnerable – this what Mokgoro J. calls the “harm principle”. Let me also add the detail at page 57 of the judgement in the Independent Newspapers (Pty) Ltd v Minister for Intelligence Services [xiii] namely that: the law must protect “the interests of [human] dignity, gender equality and the rights of children”.
A US Supreme Court decision
Consistent with this principle South African’s penal laws have been amended to restrict protection to children and people with physical and mental disabilities[xiv]. A similar move is yet to seen in Uganda. The country’s penal and related laws[xv] still carry their imperialist colonial legacy. There is no urgency to reconsider them. Instead, the country preoccupied with extremist views as seen in the Bahati (or Anti-homosexuality) Bill and the Marriage and Divorce Bill among other laws before parliament.
I contend that the right to the freedom of artistic expression is not absolute. Nevertheless, there is a need to strike a strategic balance between the protection of free artistic expression on the one hand and what Mulenga JSC in Onyango Obbo’s case (supra) calls “social considerations” or “community interest”[xvi] (read public morality) on the other.
This debate has been growing within the civic, cultural and legal circles since the US Supreme Court decision in the Case of City of Erie et al v PAP’s (also called the G-string cases) which characterised exotic (or nude) dance as a form of artistic expression which is a form of expressive conduct and is constitutionally protected. Grant Wahlquist (2011) writes that this case exposed the need to ascertain the intention of the artist rather than the assumed immoral effect of what she produces and exhibits before her audience.
Put in another way the production of nudity for art, and not for harmful pornography and obscenity, has an artistic merit and cannot, and must not, be unreasonably and unjustifiably sanctioned. I concede that it is government’s duty to draw a line between freedom of artistic expression, and harmful pornography and obscenity which must be policed. However this can only be done within the parameters set in Article 43 of the Constitution.
In the process forms of nudity, even if sexually explicit, shall be assured of protection as forms of artistic expression; many nude exhibitions will be held without fear of sanctions.
Art vs pornography
There is another angle though. In her Female Nude: Art, Obscenity and Sexuality (1992) Lynda Nead analysed the historical moments in which nudity and pornography, as visual categories, became separate. In the process nudity became an ideal form of art while pornography remained obscene and not art.
She observed that “[m]ore than any other subject the female nude connotes ‘Art’. The framed image of a female image body, hung on the wall of an art gallery, is shorthand for art more generally; it is an icon of western culture, a symbol of civilization and accomplishment” (Nead 1992,1; my emphasis).
It has elements of sensuality. It is removed from pornography which is a low category of non-art which is a basis for sensory fulfilment, or what Kenneth Clark (1957) calls an “incentive for action”. It is part of universal aesthetics: an object of contemplation to which no bodily desire must (and can) be attached. It is my opinion that it is here that many of the arguments for the Nude 2000, Nude 2001 and Nudes 2012 are located on this platform.
However, Nead also unsettled the female nude arguing that in western cultural discourse nudity has become a “means of containing femininity and female sexuality” and a procedure and convention through which high art controls the unruly body of a woman “placing it within the securing boundaries” of aesthetic discourse.
To understand this development, Nead urges us to look beyond high art per-se and see its relationship with patriarchal culture. That way we make an inquiry into how “…the image of the female body displayed in the gallery relate to other images of the female body produced within mass-culture?” (Nead 1992,1).
Like Clark’s book, Nead’s book is probably dated. After Nead other arguments have emerged. For example Mira Schor (1997) used a painting of a female vagina on a book in which she contended that the penis and masculinity are male. This was a deliberately essentialist discourse on art which would challenge Amanda Tumusiime’s (and Nead’s) contention that gender is a construct and not a biological phenomenon. For Schor the debate was critical to open new areas of inquiry into the production of masculinity (and its circulation through art?).
Nead’s book is however still relevant to the discussion on the production and exhibition of nudity in contemporary Ugandan art as seen in the celebrated nude exhibitions.
In fact by taking up Nead’s question at a theoretical and methodological level, Amanda Tumusiime (2012) has analysed ways in which Contemporary artists have joined the battle against the non-traditional women in Uganda contemporary. She demonstrated that as a result of this battle, forms of artistic expression depicting women in suggestive poses have in different but related ways become icons of perversity akin to those circulated by mass-culture and pornography. In the process the line separating high and low art, striptease (commonly called kimansulo), pornography and art, has faded.
As a result Tumusiime argues that nudity has ceased being a neutral art form and become loaded with pejorative connotations intended to attack and demean non-traditional women as a way of pushing them out of the public domain. As such Tumusiime observed that Nude 2000 had a gendered bias.
I extend this debate as I attend to the sociopolitical context of representations of men and women nudity in the three exhibitions. I engage the scion between the right to free speech, art, pornography, public opinion and policy. In response to, and in an attempt to demystify such a scion, three exhibitions have been held in succession. I start with Nude 2000.
Download the full essay as PDF (1,2 MB)
Angelo Kakande FJ has researched extensively on contemporary Ugandan art and the connection to politics. He is currently the Head of the Department of Design at MTSIFA.
[i] The notion contemporary Ugandan art has a wide meaning. It represents art, design and all other forms of contemporary artistic expression. This is the meaning I adopt in this essay.
[ii] See The New Vision published on 20 September 2000, p.39.
[iii] See Githongo John, “Congratulations Monitor, You are Still Going Strong” in Daily Monitor of 7 September 2012. Available online at: http://www.monitor.co.ug/OpEd/Commentary/Congratulations+Monitor++you+are+still+going+strong/-/689364/1498194/-/fa5gwfz/-/index.html (accessed 9-9-2012).
[iv] It was the argument of the state that although colonial and draconian these laws were in the statute books and hence to be enforced and obeyed. Human rights advocates argued that they are outdated and “there was nothing in the realm of democratic governance that stipulates that once a law is made, it has to remain intact forever”. This argument was ignored. See The New Vision of 2 September 2000 Vol. 15, No. 209 at p.10.
[v] Const. Appeal No. 2/2002. Available online at: http://www.ulii.org/ug/judgment/supreme-court/2004/1 (accessed 9-9-2012)
[vi] Looking at its headlines confirms this assertion. For example in the month of September the paper incessantly attacked government’s lack of accountability, incompetence, corruption, and its handling of the rebellion in Northern Uganda (the brutal LRA rebellion) among other issues. Parliament responded by attempting to expel all journalist from the House. This failed. However in 2006 The New Vision published an article titled “LRA War Resumes” in which Fortunate Ahimbisibwe contradicted the official view that the rebellion in Northern Uganda had ended. Although the author cited sources in the military, the article annoyed the Head of State. He promised to “sort out The New Vision [which had] been very useless for a very long time”. To honour his promise, he forced Pike to resign replacing him with Robert Kabushenga who has turned The New Vision into a government propaganda mouthpiece. See Mulindwa Edward, “William Pike Resigns Kobushenga Comes in” published online at: http://email@example.com/msg23659.html (accessed 9-9-2012). Also see “Ministers Named in Car Scam” in The New Vision of 6 September 2000, Vol. 15 No.212 at p.1; Wasike Alfred, “NSSF Loses Sh3.3b on Udyam House” in The New Vision Vol.15, No.213 at pp1-2; Osike Felix & Namutebi, “MPs Back Amnesty to Corrupt” in The New Vision Vol.15, No.218 at p.1; Muhanga Margaret, “MPs Attack Negative Press” in The New Vision Vol.15, No. 221, at p.24.
[vii] See Kimbowa Enock, “ ‘The Nude’ Show opens at Nommo Gallery” in Daily Monitor 7 September 2000 at p.17.
[viii] At page 12 Mulenga JSC called this the limitation of limitations.
[ix] JSC stands for Justice of the Supreme Court. Justice Joseph Nyamihana Mulenga served at the Supreme Court from 1997 until 2009 when he retired. He died on 29 August 2012.
[xi] Also see Article 43 of the Constitution of Uganda (the limitation clause).
[xii] Case No. CCT 21/95. Available online at http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/1996/7.html&query=%20pornography (accessed 18-7-2012)
[xiii] Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another (Independent (CCT38/07)  ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) (22 May 2008)[xiii]
[xiv] See Criminal Law (Sexual Offences and Related Matters) Amendment
Act, No. 32/2007. Available online at http://www.saflii.org/za/legis/num_act/cloarmaa2007509.pdf (accessed 9-9-2012).
[xv] Among others, I can cite the following laws which deal with the crime of indecency: The Magistrates Court Act Cap. 16, the Police Act Cap. 303, the Prisons Act, 2006 and the Computer Misuse Act No.2/2011.
[xvi][xvi] Mulenga JSC uses these phrases interchangeably. See pages 12 and 13 of the judgement.