By Ogova Ondego
Published April 10, 2021
There probably would have been no Mary Wambui or Shari Martin and their hit gospel songs, Ahadi ya Bwana and Rafiki Pesa, respectively, without Albert Gacheru Kiarie and Wamaitu Productions.
Perhaps no artist invested more in his music art and business than did Albert Gacheru Kiarie of Wamaitu Productions.
Perhaps no artist and investor has suffered more or been undermined more, even from within his own fraternity, than has Albert Gacheru of Wamaitu Productions.
As Kenya buried the remains of the late Albert Gacheru Kiarie of Wamaitu Productions in Nyandarua County on April 10, 2021, the East African country mourned more than just the death of an artist, businessman, accountant, lawyer and anti-piracy and anti-corruption champion. Nay, Kenya mourned the death of music business; an indictment of the country’s legal system in protecting copyrighted works and compensating aggrieved parties for losses due to infringement of their rights.
RELATED:Â How Political Interference and Corruption Stifles Music Business
Let me take you back to the late 1990s and early 2000s; specifically 1997 – 2003 when corruption and impunity reigned supreme in the music business sector. Then, Music Copyright Society of Kenya (MCSK) was the only collective management organisation for musicians in the country. The hub of music business was, and remains, River Road and music was packaged and played from audio tapes, a medium that made it easy for anyone to copy, duplicate and sell the recorded music thereon.
At the time, music producers were accused of exploiting musicians and these’ exploited’ musicians were encouraged by many, even from within MCSK circles, to take back their music from these producers who were ‘exploiting’ them. As producers fought with artists, pirates took advantage of the feud for a quick buck. Producers like Wamaitu Productions found themselves cornered and had to fight from all angles to free themselves in a country that seemed not to understand, let alone protect, copyrighted works.
RELATED: How Kenya’s Novel of the Year Unearths Uncomfortable Truths
Albert Gacheru Kiarie who died at Kenyatta National Hospital in the Kenyan capital, Nairobi, on April 5, 2021, was one of these ‘exploitative’ producers whose wings needed to be clipped not just by intellectual property thieves and ‘aggrieved’ musicians but also by some forces within MCSK.
As he chased pirates whose web ran from Kenya’s Nairobi to Uganda’s Kampala and to Tanzania’s Dar es Salaam, ‘aggrieved’ artists like Mary Wambui of the Ahadi ya Bwana and Nitaingia Lango Lake and Shari Martin of the Rafiki Pesa, Tangazo La Ajabu and Christmas-Christmas fame were fighting to get back their works from Albert Gacheru Kiarie.
RELATED:Â Kenyan Writer Goes Online, Turns Rural Home into Literature Archive
Wamaitu Productions was vandalised and recording equipment stolen. Then a fire raced through the studio. As if that wasn’t enough some producers, who were expected to know better, ‘grabbed’ some of Wamaitu Productions’ bestselling recordings and illegally duplicated it on compact discs (CDs), the successor of the audio tapes, and started selling them zealously, publicly and without any fear of being caught.
Desperate but not out, Albert Gacheru Kiarie had little choice but continue fighting the best way he knew how; he led raids on music shops that sold contraband music tapes that culminated in the arrest of ‘pirates’ by police; he represented himself in court as both the complainant (plaintiff) and the prosecutor, having lost confidence in trained advocates; he enrolled for a law degree studies at Mount Kenya University from 2012 to 2015; and he sought and secured elective position at MCSK where he was elected Director for Nairobi region from 2012 to 2018 and Chairman in 2018 in order to champion the rights of musicians and producers. He was also a founder member of Kenya Music Composers Association (KMCA) and Music Reforms Association (MRA) savings and credit cooperative (SACCO).
RELATED:Â African Performance Arts Book Set for Launch
Despite these efforts by Albert Gacheru Kiarie, I came across several players in the music sector who accused him of ‘exploiting’ musicians through lop-sided contracts that took away all the ‘rights’ of the musicians to the works ‘sold’.
While Sammie Macharia, the then Administrator-General at MCSK, argued that “music belongs to the composer regardless of the agreement entered into between the musician and the producer”, other sources within MCSK circles contented that It was not just musicians who were being ‘exploited’ but that producers, too, made losses when the music they have invested in failed.
“What redress can such producers have? These allegations of exploitation that exist even with MCSK are always lop-sided. If people who sell their works to producers have a right to seek redress, then producers, too, should be accorded the same,” the sources said.
RELATED:Â Higher Education Institutions Should Match Skills With Labour Market Requirements
But what sort of agreements or contracts did producers like Albert Gacheru Kiarie sign with musicians?
Civil Case 566 of 2003Â in which the late Albert Gacheru Kiarie sued Simon Muiruri Kirehu of One Stop Nduti Music Store reveals the terms and conditions of the copyright agreements between the artist and the producer, i.e to use the language of Joyce N Khaminwa of the High Court of Kenya sitting at Milimani Commercial Courts in Nairobi, “the consideration for transfer is stated and the rights sold are specified namely; to produce and/or reproduce the said songs in any form, compact disc music cassettes, gramophone records or in any manner at his own convenience and discretion and can damage the titles of any songs if need be without reference to any person. The artist agreed not to interfere in any way with the production or distribution of the songs.”
Is this the type of agreement Mary Wambui, Queen Jane, John De Matthew and Shari Martin, for instance, signed with Wamaitu Productions? Is this what MCSK Administrator-General Sammie Macharia described as being null and void “regardless of the agreement entered into between the musician and the producer”?
RELATED:Â Why Our Dressing Style Matters
In the ruling made on September 23, 2008, the Court found Simon Muiruri Kirehu of One Stop Nduti Music Store “liable for infringing the copyrights of the songs pleaded which are held by the plaintiff. He was well aware of the plaintiff’s rights as the same carried sufficient information to indicate the producer of the cassettes from where he converted the same to CDs. I hold him liable.”
But, as feared, the court failed to rule on the compensation on “loss of business and profits and damages and royalties claimed,” merely stating, ” I find no sufficient evidence to enable the court to reach a fair assessment of the same. I therefore order an inquiry into damages to be undertaken before the Deputy Registrar of this court.”
RELATED: Tribute to East Africa’s Mother of Contemporary Women’s Art
Albert Gacheru was one of 13 children born to George Kiarie and Zeweria Wairimu of Boiman Village, Gathanji Location, Oljororok Sub-county within Nyandarua County.
But how did he get in the music business?
While running a hardware shop on Nairobi’s Duruma Road, Albert Gacheru Kiarie released Mumunya (‘suck something’ in English) in 1987 that became a hit with listeners. The accountant-cum-hardware salesman followed up on this success with Mwendwa Wakwa Mariru that, once again, connected with the listeners. By then the music business bug had bitten him and Wamaitu Productions was born.
Besides his own 10 albums that contain more than 120 songs including Ya Ruanio, Hurry Hurry Waithera, Nindaguteire and Indo Ciakwa, MCSK says the late musician also published and produced more than 100 musical works for artists such as John Nganga aka De Mathew, Mary Githinji, Jane Nyambura Kinyua aka Queen Jane, Timona Mburu, Francis Kavuu aka Danger, Paul Kuria Waweru, and James Mutua Muli aka Masewani Boys, among many others.
RELATED:Â African Migrant Artist Releases Music Album
Perhaps no one pays more glowing tribute to the late producer who joined MCSK as an Author, Composer, Publisher of copyrighted musical works, Performer and Producer of Sound Recording in 1985, than Lazarus Muli, the current Chairman of MCSK, when he says the deceased was “passionate and courageous in fighting for the good governance, administration and enforcement of the Kenyan Music industry at large” and who, as “Chairman of MCSK and Director for Nairobi region … clearly and passionately articulate[d] these concerns to the Government of Kenya and stakeholders in the Kenyan Music Industry.”
Saying the late musician’s “legacy and passion for the Kenyan Music Industry shall live in our hearts forever”, Muli says Albert Gacheru Kiarie was “very active in the Kenyan Music Industry, fighting for the rights of Kenyan Authors, Composers, Publishers of copyrighted music, Performers and Producers of Sound Recording.”
RELATED:Â Who Owns Music in Kenya?
