Not an Easy Road for Buju (by Toni-Ann Smith)

Some weeks ago, Grammy winning, reggae/dancehall artiste, Mr. Mark ‘Buju Banton’ Myrie applied to The Department of Co-operatives and Friendly Societies (DCFS) to set up a charitable Foundation in his name, and of which he would be the Chairman. Buju’s request was denied as he was not deemed by the DCFS, to be a fit and proper person pursuant to the meaning prescribed under the Charities Act, 2013 (“The Act”). This is due to his 2011 conviction for which the “Upside Down” artiste, spent seven (7) years in prison in The United States of America. He was convicted for the illegal possession of a firearm and conspiracy to possess cocaine with intent to distribute.

The denial by the DCFS to have Buju add his name as a Director of his intended charitable Foundation sparked widespread public debate with some persons expressing support for him while others have expressed their understanding of what the DCFS is trying to achieve.

Section 18 (1) of the Act defines the term “fit and proper person”. It provides that this is an individual who “has not been convicted of an offence involving dishonesty” and who, “in the opinion of the Authority (the DCFS), is a person of sound probity, and is able to exercise competence, diligence and sound judgment in fulfilling his responsibilities to a charitable organization.”

Buju’s application was also denied under section 5 (a) of the Act. Section 5 outlines the objectives of the Act, the first of which is to “maintain, protect and enhance public trust and confidence in charitable organizations in Jamaica.”

Mr. Errol Gallimore, head of the DCFS explained in an interview with Television Jamaica on February 1, 2021, that his organization is “concerned whether having Mr. Myrie on the board of a Foundation would indeed be maintaining, enhancing and protecting the public trust and confidence in charitable organizations given the public’s knowledge of his conviction.”

Who is Mark Myrie?

Widely considered one of the most significant and revered artistes in Jamaican music, Mark ‘Buju Banton’ Myrie began his career as early as age 12. He hails from Salt Lane in Kingston, Jamaica and is the youngest of fifteen children. In 1986, he was introduced to music producer Robert French, which led to the recording and release of his first recorded single ‘The Ruler’ in 1987. Over the course of his career, he has released eleven albums. Most notably, he has received Grammy nominations for ‘Inna Heights’ (1999), ‘Friends for Life’ (2004), ‘Too Bad’ (2007) and ‘Upside Down 2020’ (2020). The crowning moments came in 2009 and 2011, when he won the Grammy for best reggae album for the albums ‘Rasta Got Soul’ and ‘Before the Dawn’, respectively.

However, a few months after his Grammy win in 2011, tragedy struck. Buju was convicted of drug related charges and sentenced to 10 years in U.S. prison.

Like a Phoenix rising from the ashes, Buju was released from prison on December 7, 2018, much to the delight of his fans and well-wishers. His return to music came in the form of a star-studded concert, ‘A Long Walk to Freedom’, which was a sold-out affair on the lawns of the National Stadium in Kingston, Jamaica. Jamaicans at home and abroad, and fans from across the world came out in their numbers to witness this piece of history, which was nothing short of a spectacle.

Passion for Philanthropy

In 2020, Buju entered and won the Jamaica Cultural Development Commission (JCDC) National Festival Song Competition. The winning song earned a total of Three Million Jamaican Dollars (J$3,000,000.00) in cash prizes to be divided among the singer, writer and producer.

In his first comments after being named winner of the Jamaica Festival Song competition, Buju Banton said:

“I want to congratulate the true winners tonight. Everyone who participated in this competition: you’re all winners. I was happy to share the stage with you all. But for me the true winners tonight are the Sunbeam Boys’ Home.”

In his moment of glory, he committed to donating his winnings to the Sunbeam Boys’ Home. Last month, he made good on this promise. In Gleaner article dated February 20, 2021, Buju was heralded as giving the Sunbeam Boys’ Home the “most significant gift by any individual.” The gift came in the form of an egg production business which was graciously received by the St. Catherine-based facility.

This philanthropic act shows us Buju’s purity of heart, trustworthiness and accountability. A man of his word, he kept his promise and came through in a massive way for the wards at the Home.

The Charities Act, 2013 – Scope for Review

The DCFS is duty bound to act within the confines of the Act. I can appreciate that the denial of Buju’s request was not personal, but merely a compliance with the provisions of The Act, which expressly prohibits individuals convicted of serious offences from directing their own Foundation.

However, I think that the relevant sections of The Act ought to be challenged. I find it problematic to disqualify a person’s charitable status solely on the basis of a conviction. Surely, there must be other qualities of the individual which must be weighed in the balance. Where the individual possesses far more qualities which demonstrate his/her good character and can establish, irrefutably, that the said individual is one in whom the public has trust and confidence, then he/she should be given the green light.

So in this case, the fact that Buju elected to donate his prize money from the JCDC National Festival Song Competition to charity, would have been assessed in his favour. Also, the fact that he is still respected and revered in the public domain would establish that the public has trust and confidence in him and that there would be no issue with Mr. Myrie honoring commitments to donors, beneficiaries and the general public.

On reflection, one would think that the genuine desire to assist the less fortunate and vulnerable in society should be the principal basis upon which charitable status is granted. This, in my mind should override any conviction which an applicant has. Moreover, if this desire has also been backed by action, where the individual has consistently donated to charity and conducted other charitable activities, this should, de facto establish his eligibility.

Yes, it is true that Buju may go ahead and set up the Foundation, naming another individual who meets the ‘fit and proper’ test as director but this is not enough.

The equitable position is to provide an applicant who has a record, the opportunity to schedule a hearing before the DCFS in order to determine his eligibility. Instead of being automatically disqualified, the applicant will then be able to submit evidence to establish how he has been rehabilitated and more importantly, why the said conviction will not prevent him from acting with honesty and integrity in governing his charity. Only then will the DCFS be able to justifiably make the call as to whether a conviction on the part of an applicant will truly contravene the objects of the Act.

Comparative Assessment

I am an attorney-at-law. In order to gain admission to the Bar to practice law in Jamaica, I too was subjected to similar eligibility rules under the Legal Profession Act. Section 6 provides that a person seeking enrolment must be of “good character.”

Being convicted of an offence would, prima facie, disqualify you from enrolment. However, the Act allows for some reprieve by granting an applicant who has a criminal record, the opportunity to submit an application to the regulatory authority, where he must adduce evidence establishing his good character, also that he has been fully rehabilitated and does not pose any undue risk to the public.

This opportunity for redress ought to be afforded to applicants who desire to set up a charitable Foundation under the Charities Act. I call on the lawmakers to review and ultimately amend section 18 of The Charities Act, to allow applicants with convictions, the opportunity to be heard. The eligibility of an applicant with a conviction should be assessed on a case-by-case basis.