The Censorship and Entertainments Control Act [Chapter 10:04] regulates films in Zimbabwe using ambiguous and vague terms. For example, the law is not clear on what is deemed, ‘undesirable, offensive or harmful to the public morals’ (Mazango and Chiumbu, 2001:63). In terms of Sections 11 and 27 of the Censorship and Entertainment Controls Act, a publication is deemed undesirable if it:
(1) Is indecent or obscene or is offensive or harmful to public morals.
(2) Is likely to be contrary to the interests of defense, public safety, public order, the economic interests of the State or public health.
The element of indecency or obscenity is substantiated in Section 27 which says that material shall be deemed to be indecent or obscene if:
(1) It has the indecency to deprave or corrupt the minds of persons who are likely to be exposed to the effect or influence, thereof, or it is in any way subversive of morality or:
(2) Whether or not related to any sexual content, it unduly exploits horror, cruelty or violence, whether or otherwise.
(3) Offensive to the public morals if it is likely to be outrageous or disgusting to persons who are likely to read, hear or see it.
45
(4) Harmful to public morals if it deals in an improper or offensive manner with criminal or immoral behavior.
Terms such as obscenity, indecency, offensive and national interests are not clearly defined and as such the vocabulary in the Act is the starting point of the State’s censorship practices. The terms are characterised by a multiplicity of meanings and lack agreement on the proper limits of the application of law (Nicol, 1984). Patel (1997) argues further that assuming the possibility of some objectively ascertainable response to what is obscene; the paradox is that the charge of obscenity may be avoided by raising the aversion defense. The contention is that material cannot be deemed obscene if it is so repulsive that it discourages the sexual drive rather than stimulate it. This argument, although bordering on sophistry, has been accepted in several instances as a means of exculpating literature of merit (ibid, 1997). Similarly, to determine the constitutionality of restricting obscenity regarding film images, several questions have to be posed and these are:
(1) Does the restriction interfere with the right to freedom of expression as guaranteed under the constitution?
(2) Is the restriction ‘prescribed by law’ or ‘under the authority of any law”?
(3) (3) Does the restriction serve a legitimate objective of sufficient importance to warrant overriding a constitutionally protected right?
(4) Is the restriction reasonable, and necessary or justifiable in a democratic society? (Stevens, 2000).
(1) Freedom of expression as guaranteed under the constitution
Stevens (2000) contends that the purpose of the interference test is to ensure that strict requirements of constitutional law are applied only in the context of restrictions that actually limit freedom of expressions. The test should address both the effect and the objective of legislation so as to determine whether there is an abridgement of freedom of expression or not.
If, for example, the restrictions in the law of Censorship and Entertainments Control Act [Chapter 10:04)] have the purpose and the effect of banning and restrictively classify publications and films, then the law clearly interferes with the right to freedom of expression.
46 (2) Restrictions Prescribed by Law
Restrictions on fundamental rights are prescribed by or under the authority of law. A restriction does not satisfy the prescribed by law part of the test if it is so vague that citizens cannot reasonably predict what the requirements of law are. Such a statute or such part thereof will be void on the grounds of vagueness (Stevens, 2000). For example, when the rape scene in the film Flame (1996) was dismissed on the grounds that the scene was obscene and pornographic the law could not justify what was pornographic about that scene. Ultimately, the producers of Flame(1996) were acquitted for the criminal case of showing pornography and obscene images but the producers were forced by the Censorship Board to remove the rough cuts that included much of the ‘uncensored’, and therefore, some of the most authentic images about the contradictions of the liberation struggle. In some jurisdictions, words such as indecent and obscene have been rejected as being excessively vague. Charges on obscenity become problematic because they attract questions such as: ‘What behavioral response is it that the law seeks to curb or eliminate? Is it feelings of disgust, the sense of shame, tendencies to sadistic cruelty, unbridled lust or merely the sensual urge—or all of these things’ (Patel, 1997: 65).
Similarly, terms such as offensive or harmful to public morals of section 11 and 27 of Censorship and Entertainments Control Act are fundamentally ambiguous. The ambiguity, in the case of Zimbabwe, would mean the government can put restrictions to any material that it deems fit to qualify within the description: ‘offensive or harmful to public morals’ (Stevens, 2000:14).
To invoke a parallel example as a point of comparison with Zimbabwean censorship laws, in South Africa, legislators have opted for a detailed list of prohibited material. Schedule 1 of the 1996 Films and Publication Act, as amended, defines XX Classification of prohibited publications as material which contains a real or simulated visual presentation of:
a. Child pornography
b. Explicit violent sexual conduct;
c. Bestiality
47
d. Explicit sexual activity which degrades a person and which constituted incitement to cause harm; or
e. The explicit infliction of or explicit effect of extreme violence which constitutes incitement to cause harm. For their part, films in South Africa have codified the nature of images that can be expected, for example:
13 PG – means children under the age of 13 can watch the film but parental guidance is needed, 16 VLSN –means the film is strictly for 16 year olds and above because it contains violent language, sexual scenes and nudity.
18® - means the film is restricted only to people who are 18 and above because it contains pornographic scenes and extreme violence (Nel etal, 2008).
Though not the most liberal of censorship laws in the world, the South African laws on censorship indicate and provide clear reasons for what is described as permitted or not permitted.
This is unlike in post-independence Zimbabwe where statutes on censorship have retained linguistic vagueness, and ambiguity that can sometimes allow the state to arbitrarily use them against artists viewed as creating values outside the political line favourable to government policies. On one hand, the example of Zimbabwe laws reveals how it is possible for censorship laws to be used arbitrarily to choke freedom of expression. On the other hand, the example of the South African laws and how these laws strive to be as clear as possible reveals how laws can be used to enable filmmakers to know the limits within which they are creating images. One can argue that all two examples carry the desire to censor, but as argued above the degree to which censorship is practiced in the two countries alluded to differ. The important questions become not whether or not films must be censorship but to what extent, for what purposes?
(3) Restrictions to serve a Legitimate Objective
Stevens (2000:15) makes an important point when he asserts that, ‘Restrictions on freedom of expression must serve a legitimate legislative objective which is of sufficient importance to justify limiting a fundamental right’. It is a fundamental right for audiences to be informed through visual images. However, if films expose, especially to children, pornographic material and images with
48
extreme violence, law has a legitimate objective to protect children from being corrupted by such obscene images. Feltoe (2003) supports the above viewpoint by contending that it is clear that the prevention of harm to children satisfies the standard of law’s legitimate objective. However, it is much less clearer that the objective of preventing offence to public sensibilities warrants restricting freedom of expression, especially when the language in the ordinances and statutes obfuscicates rather than clarify what is and what is not subject to censorship. The ideological silences embedded in legal words that are vague, are in fact calculated to undermine film creativity and then disown responsibility and consequences for doing so. This is a subtle form of censorship upon which the basis of enforcing other banal forms of censorship such as banning or proscecuting, and intimidating artists rests, and serves the authorities in power. When artists are harassed then they are likely to censor their next piece of art, resulting in self-censorship which ultimately serves the interests of dominant values in society.
(4) Restrictions that are Reasonable, Necessary or Justifiable in a Democratic Society
Even when the censorship laws serve legitimate objectives, the language of law has to be carefully designed and expected to advance legitimate objectives in practice. Measures which in practice fail to achieve it cannot be justified (Stevens, 2000). Second, the effect of any restriction must, so far as is possible, be limited to the harmful expression which it is designed to restrict. According to Section 20 (2) of Censorship and Entertainments Controls Act, a harmful expression is tantamount to violate,
“…interests of defence, public morality or public health or for the purpose of protecting the reputations, rights and freedoms of other persons.” (Ndlela, 2003: 7) Although the legitimate aim in the above statute is to protect national security and individual reputation, its terms are wide and ambiguous. In practice, and especially in Zimbabwe, experience has shown that the concepts national security and public order have been widely defined to include virtually every aspect of national life (Ndlela, 2003). By implication, it means any film that elects to depict security forces violating the humanity of ordinary who may/or may not have a just cause will be prohibited from being screened. The film can easily be misinterpretated by authoritiesas inciting the public and therefore viewed as a threat to national security or public order. Therefore, in a democracy, there is a need to provide specific provisions that clarify limitations on the nature of a right, the importance of the purpose of the limitation, the nature and extent of a limitation and the relation between the
49
limitation and its purpose (Ndlela, 2003). The limitations of law and its application are not also clearly defined in the Access to Information and Protection of Privacy Act (AIPPA) of 2001 and Public Order and Security Act (POSA) of 2002 that the new nationalist government imposed on its people under the guise of preserving national sovereignty.