This is a Discussion Document and the recommendations are not binding nor cast in stone. Its purpose is to provoke discussion in order to arrive at “sufficient consensus” on the core issues and processes. As with the Working Document on the proposed Code of Conduct for the Theatre Industry, this Discussion Document is provided in good faith by the African Arts Institute (AFAI) having hosted a debate that resolved to produce such documents. However, this is not for AFAI to drive or provide leadership in; it is now up to institutions in the theatre sector to take these matters further. These documents have been forwarded to the Market Theatre, State Theatre, Artscape, PE Opera House and Soweto Theatre among others, for their consideration and collective action. They are posted here in public for anyone with an interest to provide feedback, to propose amendments or to refute in its entirety. Any feedback will be forwarded to those who take the initiative in driving these matters further.
The purpose of this Discussion Document is to initiate a process that will eventually arrive at a generally- agreed process (since it is unlikely that there will be complete consensus) on how, if at all, those active within the theatre industry and who are found guilty of – or who are suspected of – committing serious offences, should be re-integrated into the theatre sector. On the one hand, are the legal and constitutional rights of the person to work, to exercise freedom of creative expression, to freedom of movement and to freedom of association. On the other hand, are the rights of, and potential adverse impact on, those with whom the offender could work.
While other industries have registration processes, ombudsmen, internal disciplinary processes so that, for example, a doctor may be tried and found guilty of contravening ethical standards within the industry and is then given a sentence commensurate with the seriousness of the offence e.g. a fine, or suspension from practice for a particular period or having her/his practice in the industry permanently terminated, the same does not prevail within the theatre industry.
Some theatre institutions have employment manuals and contracts of engagement that cover minor to serious offences, with concomitant disciplinary processes and punishments. But this does not apply across the industry so that, for example, someone found guilty of defrauding one theatre institution and being fired consequently, may still be employed by another theatre institution, whether they know the defrauder’s history or not.
This Discussion Document should be read in conjunction with the proposed “Code of Conduct for the Theatre Industry”.
A number of cases currently in our consciousness raises the questions that need to be grappled with.
Tsepo wa Mamatu
The recent debates around the withdrawal of Tsepo wa Mamatu’s play – By My Grave – from the Cape Town Fringe by the organisers after they were petitioned to do so by some theatre-makers in Cape Town because of Wa Mamatu having been found guilty of sexual harassment by Wits University, has raised a number of issues.
Those who pressured the Festival organisers to take this stand included some who considered it inappropriate that Wa Mamatu be given a platform to perform his play about the sexual harassment episode, while his victims were not provided with a similar platform.
Among these, were those of the view that if Wa Mamatu’s play had been about a different subject matter, then it would have mattered less i.e. the issue for them was that it was a play about a theme where he would have his say and his victims would not have a similar voice.
The same argument was used when Wa Mamatu was to participate in a debate about the withdrawal of his play by the Cape Town Fringe: the topic of the debate was about whether this – the withdrawal of his play – constituted just action given what he had been found guilty of, or whether it constituted “ongoing persecution” after he had already been punished for his offences by being fired from Wits University.
Some argued that he should not be given a platform to air his opinion while his victims were not provided with the same platform. This argument was made despite the clarification that the purpose of the debate was not to determine whether Wa Mamatu was guilty of the offences for which he had been fired (and so his guilt was not in question), but rather, having been found guilty and having been punished, at what point would he be allowed to work within the industry again without other institutions – other festivals, theatres, independent companies, etc – being threatened with a boycott, or being pressurized not to work with him? Having already expressed himself in the media about why he considered his treatment by the Cape Town Fringe to be unfair, the debate was to be an opportunity for him to engage with peers in the sector – and in Cape Town to which had relocated – about why he considered it unfair. At the same time, his peers would be able to offer alternative arguments, and through the debate, a way forward could manifest itself.
The questions that arise from this episode include the following:
1. If someone is found guilty of serious offences within the theatre sector, and has been punished for it e.g. being fired from her/his place of employment, what should that person do before s/he is able to work or be employed within the theatre industry again? Does s/he have to do anything, or is it simply up to an institution as to whether it will employ/contract that person again?
2. Might the seriousness of the offence mean that the person could forever be excluded from working within the industry or would that person be allowed to work within the industry but only under certain conditions e.g. if an actor was found guilty of molesting young children, would/should that actor be allowed to work in the industry again, but only if s/he did not work with children?
3. While institutions, independent companies and festivals will always have the right to choose whether to employ someone who has been found guilty of serious offences or to allow them to hire their theatre, or be part of their festival, on what basis can – if at all – theatre institutions, companies and festivals legitimately – legally or otherwise – exclude individuals found guilty of serious offences, either committed within the industry, or as industry workers in other areas of their lives?
4. Is it in the disparate nature of the industry that individuals found guilty of serious offences will always be subject to ad hoc pressures so that depending on the existence or strength of the lobby against that person, his or her work within the industry will always be subject to such pressures?
5. Is there a way in which the theatre industry can regulate itself with regard to these matters, or, given the nature of the industry, are these matters always to be treated on a case-by-case basis?
On 9 September 2014, Mbongeni Ngema issued a media release in which he refuted claims by singer Tu Nokwe that she had not been given the necessary credit for her role in the creation of the hit musical, Sarafina.
At the end of the statement, it also states:
With regards to allegations made by Nokwe of physical assault by Ngema on her, Ngema denies any such occurrences taking place.
There have, over a number of years, been public allegations of Mbongeni Ngema, a celebrated theatre luminary, assaulting women partners as well as cast members. These have never been proven in a court of law or in any other forum, and Ngema has continued to work within the industry without any sanction or conditions.
This episode raises, among others, the following questions:
1. When there are allegations of serious offences having been committed by a member of the theatre industry, how are these to be investigated and dealt with?
2. When the alleged perpetrator is a powerful figure within the industry, how are alleged victims empowered to lodge complaints without fear of alienating others in the theatre industry, or of being intimidated or shamed in the process?
3. While there may be no legal obligation, what – if any – is the moral responsibility of theatre institutions (theatres, festivals, independent companies, unions, guilds, etc) in such instances? Do they take a hands-off approach and continue working with the alleged perpetrator until s/he is charged and/or found guilty in a court of law?
4. Do institutions have Codes of Conduct and the requisite processes and mechanisms in place to deal with serious offences by their employees or those they contract to work with on an ad hoc basis, or by people who hire their theatres and may commit serious offences on their property, or by people who have been found guilty of serious offences and who now seek to work in or hire their facilities?
5. How do institutions work with those who may have allegations pending against them, but who have not been found guilty of such offences? Are institutions morally complicit in the offences with which the alleged perpetrators are charged (not necessarily legally) if they continue to work with them?
An internationally-acclaimed South African artist, Zwelethu Mthethwa, is currently on trial for allegedly beating and kicking to death a woman, Nokuphila Khumalo. While he is on trial and out on bail, and with these serious charges against him, he continues to make art. His gallery continues to sell his work and he is not prevented from making work about any subject he desires, or from producing art, or from making an income from his art. Even if he is found guilty and jailed, his ability to produce work may be circumscribed by prison conditions, but he will continue to have his work sold locally and internationally.
Some of the questions that arise from this case are the following:
1. Does the way in which “serious offenders” are dealt with vary from sector to sector within the creative industries depending on the nature of the industry, rather than because of moral, ethical or legal factors? Are individuals within the theatre – or opera, dance, film – community to be treated differently because of the collective nature of their work, while artists within the literary, visual arts, design and craft sector are given more slack because of the individualist nature of their creation and production?
2. When individuals are charged with serious offences – either within a court of law or by a company or institution – how are they to be treated? As innocent till proven guilty? To be suspended while the relevant investigation and disciplinary processes take place?
3. If the alleged offences of the person do not happen within the sector but within the person’s personal life for example, does “the industry” have any moral or legal right to impose further sanctions on the person?
Oscar Pistorius has been found guilty of culpable homicide after shooting dead his partner, Reeva Steenkamp. Notwithstanding this, and the fact that he still has to be sentenced, the International Paralympic Committee indicated immediately after his guilty verdict that in their view, Pistorius “is an inspiration to millions” and that “if he wishes to resume his athletics career, then we wouldn’t step in his way – we would allow him to compete again in the future.”
This raises the following questions:
1. Should serious offenders be treated differently depending on their celebrity, influence or ability to inspire so that those who are less charismatic, charming, high profile or inspirational should be judged more harshly?
2. Is sport different to the arts sector?
3. Even if the International Paralympic Committee has this view at this stage, might they bow to pressure from lobby groups in the future protesting Pistorius’ involvement in a sports event? What are the moral issues or the issues of principle versus the strategic issues, a similar question that may be posed to the Cape Town Fringe organisers? And to the theatre/arts industry more generally?
Glynn Day and Keith Anderson
The above examples all have a common theme of violence against women.
Yet, within the theatre/arts industry, there are similar cases of violence with adults preying on children and older men sexually abusing younger men in the theatre. Actor Glynn Day was found guilty of abusing young children while working as a director and actor in children’s theatre, while after his death, Keith Anderson – a well-known designer, puppeteer and circus trainer – was alleged to have been part of a child sex ring.
Questions that arise from these episodes:
1. Does the theatre industry need a Code of Conduct to spell out acceptable and unacceptable behavior?
2. Does there need to be separate Codes for the abuse of women on the one hand and for the abuse of children and men on the other, as well as additional Codes for other serious offences such as physical violence, corruption and theft?
3. Is there a hierarchy of “serious offences”, with some being more serious than others, and thus necessarily being treated differently, with more harsh punishments and more stringent conditions for the reintegration of the offending party?
4. Are there particular issues that are peculiar to, and thus need to be handled on the basis of gender-sensitivity? If so, what might this mean in practice?
5. Are there particular issues that are peculiar to, and thus need to be handled on the basis of cultural-sensitivity? Are there different ways in which different cultures would handle violations or offences? If so, what are these, and what might this mean in practice?
MOVING FORWARD: RECOMMENDATIONS
These are complex and challenging moral, legal, ethical and strategic questions. Precisely because of their complexity perhaps, they have been avoided. Furthermore, the absence of a legitimate, coordinating professional structure within the industry contributes to the lack of processes and mechanisms to deal with these questions. As a result, the sector is often hamstrung in how to move forward when confronted with a related challenge, and then it generally becomes a case of who has the influence, voice, resources and networks most to influence the response at that point.
1. While there is no unifying theatre industry structure, there are institutions engaged in theatre. It is recommended that as many theatre institutions as possible be encouraged:
1.1 to agree to a general Code of Conduct
1.2 to agree to including this Code of Conduct in their employment manuals, contracts with ad hoc employees and independent contractors and outside hirers
1.3 agree to a mechanism to deal with contraventions of the Code of Conduct
2. That institutions invited to agree to such a Code of Conduct include:
2.1 public, private and pop-up theatres
2.2 festivals in which theatre is presented
2.3 training institutions where theatre is taught
2.4 independent theatre companies
2.5 theatre unions and networks
2.6 individual theatre practitioners
Code of Conduct
Such a Code (the draft for which exists and needs to be debated, amended and adopted by major institutions in the theatre industry) would serve at least two purposes:
1. to educate professionals, students and volunteers in the theatre industry about what constitutes acceptable conduct and
2. to serve as a means to empower complainants and to establish processes and means by which to deal with alleged contraventions of the Code, as well as with parties found guilty of having contravened the Code
Managing allegations of Contraventions of the Code
1. When allegations of contraventions of the Code are lodged either with the Institution where they are alleged to have occurred, that institution is to investigate and take action as per their internal processes, and as per the Labour Relations Act and related regulations.
2. Where a party has been found guilty of a particularly serious offence (to be articulated in the Code of Conduct e.g. rape, physical violence, etc), that institution is to inform other signatories to the Code in the country of the offence, of the offender and of the outcome of the investigation and disciplinary process.
3. As part of the disciplinary process and outcome, the institution is to make recommendations on how, if at all, the offending party is to be re-integrated into the theatre industry e.g. under certain conditions, after suspension for a period, after rehabilitation, etc.
4. It will then be up to institutions – with this information – to decide how to engage with the offending party, if at all, in the future.
5. Where the alleged offence may affect more than one institution, a mechanism to investigate and make recommendations should be established that comprises representation from different institutions in the sector.
6. Where disciplinary action and recommendations have been made by an ad hoc body representative of the sector, others within the sector and the offending party may appeal these findings and recommendations to another entity comprising institutions not engaged in the original findings. The findings of this appeal structure will be deemed final.
QUESTIONS TO CONSIDER
In making the recommendations listed in 3 above, the relevant institution or investigative/disciplinary mechanism may consider the following questions:
1. The nature and seriousness of the offence in terms of the Code of Conduct
2. The impact of the offence on the victims of the offence
3. Whether the offending party concedes or denies guilt, and shows remorse
4. Whether criminal charges are warranted or not
5. Whether reparations are required e.g. paying back stolen funds
6. Whether the punishment meted for the offence is sufficient, and that the offending party should then be allowed to work as s/he chooses
7. Whether, having been found guilty and having been punished, there are additional measures/conditions to be asserted and with which the offending party needs to comply, given the nature of the offence on which s/he has been found guilty.