Zambezia (1997), XXIV (i).FREEDOM OF LITERARY EXPRESSION ANDCENSORSHIP IN ZIMBABWEBHARAT PATELLegal Practitioner, ZimbabweAbstractThis article examines the Zimbabwean law of censorship relating to thecirculation of literature in the context of the freedom of expression as a legalright guaranteed by the African Charter and the Constitution of Zimbabwe. Inparticular, the article evaluates the governing statutory regime in terms of itsconformity or otherwise with the freedom of expression. The author alsoattempts, in the light of previous practice, to identify specific conceptualproblems that are confronted in the censorship of literature. The conclusionsuggests that the undue influence of subjectivity in the assessment of literatureprobably justifies the removal of censorship in this sphere.INTRODUCTIONTHE ROLE OF the censor in any society is inevitably an ambivalent one. Notunlike some socio-cultural barometer, he or she must tussle with thesimultaneous demands of maintaining public mores and allowing the freemovement of ideas and information. And to do so objectively andimpartially, often with little more than personal observation and intuitionfor guidance, is surely one of the most arduous and invidious positions ofsocial responsibility.How and why censorship should be exercised in a given society arequestions that are as large as they are controversial. From a purely legalperspective, they cannot be meaningfully addressed except indirectly byway of analysing the efficacy or legality of a given policy. Be that as it may,the scope of this article is considerably more limited. Its object is toexamine the Zimbabwean law of censorship governing the circulation of'literature' (however that may properly be defined) in the context of thefreedom of expression as a juridical norm enshrined in the African Charterand in the Constitution of Zimbabwe.AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTSFreedom, so it is postulated, is universal and therefore indivisible. Thus,the General Assembly of the United Nations proclaimed the UniversalDeclaration of Human Rights as 'a common standard of achievement forall peoples and all nations' and enjoined the 'universal and effective5152 FREEDOM OF LITERARY EXPRESSION AND CENSORSHIP IN ZIMBABWErecognition and observance' of the rights and freedoms enunciated in theDeclaration.1This affirmation, however, does not and cannot preclude theformulation of regionally specific standards which, though peculiar to theregion in which they obtain, complement rather than contradict theapplication of internationally conceived standards. Indeed, a regionalsystem of human rights may carry with it a greater potential for themeaningful enjoyment of those rights by virtue of the cohesion implied bygeographical proximity as well as social and cultural affinity. It is in thisvein that continental groupings under the United Nations umbrella haveopted for regional instruments as a means of enhancing the due recognitionand observance of human rights.2The African Charter was adopted by the Organisation of African Unityin 19813 and entered into force in September 1986.4 In so far as concernsthe expression of substantive rights and freedoms, the Charter wasconceived in the image of the Universal Declaration. Nevertheless, itcontains certain distinctive features that are either novel or quite peculiarto the African context, and which might have some bearing on the freedomof expression.The Preamble to the Charter reflects the recency of foreign dominationand the need not only to achieve material independence but also todisburden the African consciousness of its colonial baggage. The totalityof the drive towards liberation is more fully articulated in Article 20 wherethe right of peoples to self-determination is defined to encompass thestruggle against political and economic as well as cultural domination.The inescapable corollary of economic liberation is the right todevelopment, which is conceived in Articles 21 and 22 as entitling peoplesfreely to dispose of their wealth and natural resources in order to enhancecollective development. Firmly entrenched in the Preamble as well as thebody of the Charter is the conviction that civil and political rights areindissociable from economic, social and cultural rights. Indeed, thesatisfaction of the latter is perceived to be a precondition for the enjoymentof the former.Another crucial element, albeit not unique to the Charter, is that theexercise of rights and freedoms is necessarily conditioned by the dueperformance of duties and obligations. The individual, in other words,Preamble to the Declaration (UN Doc. A/811, 1948).Of major significance are the European Convention on Human Rights (1950), EuropeanSocial Charter (1961), American Convention on Human Rights (1969), Additional Protocolto the American Convention (1988), and the African Charter on Human and Peoples' RightsAt the 18th Assembly of Heads of State and Government, June 1981, Nairobi.In accordance with the provisions of Article 63.3.B. PATEL 53cannot demand his rights without doing his duties. These duties towardssociety are envisaged in Articles 27, 28 and 29 as being both positive andnegative. The positive aspect requires the individual to respect and toleratehis or her fellow beings and actively to pursue the interests of the familyand the larger community. In the negative sense, the individual is obligedto refrain from any activity which might adversely impact on the rights ofothers or of the community.The interdependence of rights and duties is reflected at a differentlevel in the necessary linkage between individual and collective rights.The individual's status and rights stem from his existence within, andinteraction with, society. Accordingly, his or her position cannot bemaintained at the expense of society and, conversely, the collective interestshould not be invoked to undermine individual freedoms. The inevitabledifficulty, of course, arises where individual and collective interests divergeto such an extent that it becomes impossible to harmonise them.Turning to the freedom of expression in particular, Article 9 of theCharter provides as follows:1 Every individual shall have the right to receive information.2. Every individual shall have the right to express and disseminate hisopinions within the law.Thus stated, the freedom of expression embodies two distinct rights:the right to receive and the right to impart information, opinions andideas. In essence, the two-fold nature of this freedom as enunciated m theAfrican Charter accords substantially with its formulation in otherinternational and regional instruments.5 Again, as is the case with otherinstruments, the exercise of the freedom is subject to restrictions imposedby the law for the protection of others and the public interest. In theCharter, this limitation is stated very baldly as applying to circumscribethe freedom 'within the law'. Clearly, it could not have been intended bythe drafters that any restriction whatsoever, no matter how sweepingshould operate, so long as it is imposed by law, to curtail the freedom oexpression. If the freedom is not to be whittled down to the point ofextinction, the power of the law to limit the freedom must itself be limitedThe qualifications, I would submit, are to be found in Articles 11, IXand 29 of the Charter. Thus, in exercising his or her freedom of expression,the individual must have 'due regard to the rights of others, collectivesecurity, morality and common interest' and must further respect.. ^hisfellow beings... and ... maintain relations aimed at promoting, safeguardingArticle 19 of the Universal Declaration of Human Rights ^f^^^^^Covenant on Civil and Political Rights (1966); Article 10 of '^European Convenuon onHuman Rights (1950); Article 13 of the American Convention on "^^0990)also Article 7 of the African Charter on the Rights and Welfare of the Child (199U).54 FREEDOM OF LITERARY EXPRESSION AND CENSORSHIP IN ZIMBABWEand reinforcing mutual respect and tolerance'. In more general terms, theindividual is also enjoined 'to preserve the harmonious development ofthe family and to work for the cohesion and respect of the family' as wellas 'to preserve and strengthen positive African cultural values' and 'tocontribute to the promotion of the moral well-being of society'.These provisions, taken together, serve to identify the collectiveinterests, values and criteria that might properly be invoked by the stateto justify any abridgement of the freedom of expression. This approach isin keeping with the duties imposed on the state, by Articles 17 and 18, topromote and protect 'morals and traditional values recognised by thecommunity' and to assist 'the family which is the custodian of morals andtraditional values'. It also reinforces the essential characteristics underlyingthe Charter relative to mutual respect, the role of the family and theindividual's obligations towards the immediate community and society atlarge. In short, it is the individual's duties towards others which serve todefine the extent to which his or her freedom of expression may justifiablybe interfered with.FREEDOM OF EXPRESSION IN THE CONSTITUTIONThe Declaration of Rights in the Constitution of Zimbabwe, like manyother national constitutions, is predicated on the need to strike a balancebetween the rights and interests of the individual on the one hand andsocial obligations and the public interest on the other. This dichotomy ofrights and interests is expounded at the very outset of the Declaration, insection 11, in terms which make it abundantly clear that the rights andfreedoms of the individual are subject to respect for the rights and freedomsof others and for the public interest.The freedom of expression itself is enunciated in section 20 (1) asfollows:Except with his own consent or by way of parental discipline, no personshall be hindered in the enjoyment of his freedom of expression, that isto say, freedom to hold opinions and to receive and impart ideas andinformation without interference, and freedom from interference withhis correspondence.As with the conventional provisions referred to earlier, this formulationcaptures the duality inherent in the freedom of expression, viz. the right toreceive and impart ideas and information without interference. Additionally,by way of emphasis, special recognition is given to the privacy ofcorrespondence.The limitations to the freedom of expression are elaborated in sub-sections (2) and (6) and, to some extent, in sub-section (1) itself. Firstly,every person is entitled to voluntarily assume the imposition of restraintsB. PATEL 55on his or her freedom Š usually by way of contractually agreed obligations.Secondly, it is accepted that persons below the age of majority are subjectto whatever regime of discipline is fixed and applied by their parents orguardians. Thirdly, as stipulated in sub-section (6), the freedom ofexpression does not per se confer a right to exercise that freedom in anypublic thoroughfare. In other words, the so-called 'right to demonstrate'cannot be exercised so as to hinder the free passage of persons or vehicles.Sub-section (2) enumerates the range of matters in relation to whichthe freedom of expression may be derogated from by way of legalprescription. First and foremost is the possibility of limitations devised inthe public interest, in particular, 'the interests of defence, public safety,public order, the economic interests of the state, public morality or publichealth'. The second category of limitations involves the need to protect'the reputations, rights and freedoms of other persons or the private livesof persons concerned in legal proceedings'. The rights and freedoms to beprotected in this context would, obviously enough, embrace theconstitutional rights of others, including, for instance, their freedom ofconscience and of religion. The remaining areas of possible prescriptionrelate to the disclosure of confidential information, the maintenance ofjudicial and parliamentary independence, the regulation oftelecommunications and the activities of public officers.In all of the matters covered by sub-section (2), the possibility of thelaw being prescribed or perverted to nullify the freedom of expression istempered by the requirement that the law cannot exceed the bounds ofreasonableness. The test of what is or is not reasonable in this instance(as with other provisions of the Declaration of Rights) is that the law inquestion or the action taken under its authority should be 'reasonablyjustifiable in a democratic society'.A comparison of section 20 with the African Charter and otherconventional provisions indicates a broadly concordant approach to theenjoyment and restraint of the freedom of expression. Generally speaking,limitations to that freedom are to be justified by reference to the rights ofothers or the public interest. A similar approach is also evident in theconstitutional provisions of other African countries.6 The distinctive featureof the Zimbabwean Constitution is the attempt to chart the parameters ofthe freedom and the permissible restrictions thereon through the perspexof democratic reasonableness. What this means in state practice and howCf. Article 7 of the 1964 Dahomey Constitution and Article 25 of the 1963 Ni8erian^°,n^""uenti f h fanch oach adopts a terse but e qCf. Article 7 o t mey ^,^uentThe former, representative of the francophone approach, adopts a terse but e _ q ^preambular formula, listing, among other fundamental liberties, the tree ^'manifestation'. The latter is more typical of the anglophone approach in its au<= varticulate the freedom and its limitations in greater detail.56 FREEDOM OF LITERARY EXPRESSION AND CENSORSHIP IN ZIMBABWEit might be interpreted judicially are issues that are far from beingunproblematic.7In recent years, the Supreme Court of Zimbabwe has attempted todefine the democratic justifiability or otherwise of restrictions onfundamental rights.8 The Court has proceeded on the premise thatinterference with a constitutional right is not reasonably justifiable if itarbitrarily or excessively invades the right according to the standards of asociety that has proper respect for the rights of the individual. The criteriato be applied in determining the legitimacy of interference are that:(a) the legislative objective must be sufficiently important to justifylimiting a fundamental right or freedom;(b) the measures designed to meet the legislative objective must berationally connected to it and must not be arbitrary, unfair or basedon unreasonable considerations; and(c) the means used to impair the right or freedom must not exceed whatis necessary to accomplish the legislative objective.CENSORSHIP LAWS IN ZIMBABWEThe control of publications made its first entry into the statute books ofSouthern Rhodesia in January 1912 through the Obscene PublicationsOrdinance, 1911.9 As is evident from the title of this enactment, the scopeof statutory control was confined to indecent or obscene publications.The manner of control that was adopted was the traditionally robustdevice of criminalising and penalising specified conduct. The particularactivities that the Ordinance proscribed covered the importation,production, sale, distribution, possession and posting of indecent orobscene publications or printed matter. That the legislator deemed thesubject matter to be especially abominable and the mischief involved tobe one of heinous proportions is quite evident having regard to therelative severity of the penalties imposed.107 The traditionally favoured test of the English courts in seeking to define the essence ofreasonableness was to have regard to what might be perceived and conceived by 'the manon the Clapham omnibus'. The relentless impact of social and cultural change has broughtthis test into considerable disrepute and inevitable disuse. In any event, it remains to beseen whether any analogous test could be successfully deployed on the Zimbabwean sociallandscape.8 Woods and Others v Minister of Justice and Others 1994 (2) ZLR 195 (S); Nyambirai v NationalSocial Security Authority and Another 1996 (1) S.A. 636 (ZS); Retrofit (Pvt) Ltd v Posts andTelecommunications Corporation and Another 1996 (1) S.A. 847 (ZS).9 Ordinance No. 14 of 1911.10 These ranged from a fine of £10 or a prison term of one month for possession to a fine ofS25O and/or incarceration up to three years for importation or production. In comparison,the brewing, sale, possession and supply of traditional beer, under an Ordinance promulgatedin 1911, were regarded with relative leniency Š attracting a penalty of S50 or six monthsimprisonment.B. PATEL 57The regulation of the visual media was also introduced later the sameyear, in terms of the Cinematograph Ordinance, 1912." The primaryconcern of this enactment appears to have been the physical safety of thepremises used for celluloid exhibitions rather than the moral purity of theviewing public. Indeed, exhibitions given in private premises were expresslyexcluded from the purview of statutory control. Subsequent legislation,promulgated as the Entertainments Control and Censorship Act, 1932,12expanded the scope of control to cover theatrical performances and otherpublic entertainments. This Act also established the Board of Censorswhose functions at that time were confined to the scrutiny of films andfilm advertisements.In 1967, the diverse strands of legislation were combined in theCensorship and Entertainments Control Act, 1967.13 This Act was thenupdated and consolidated under the same title as Chapter 78 in 1974 andas Chapter 10: 04 in 1996,14 but has remained substantially intact since itsinception in 1967. It is this piece of legislation and, in particular, itstreatment of publications that I now turn to consider.LITERARY CENSORSHIP: PROCEDURAL ASPECTSPart FV of the present Act regulates, inter alia, the importation, production,distribution and sale of publications (as well as pictures, statues andrecords). The term 'publication' is broadly defined to include all printedmatter as well as any written or typed matter which is reproduced forcirculation. The basic restriction, contained in section 13, applies topublications which are ex facie undesirable or which have been declaredby the Board of Censors to be undesirable.Administratively, the Board constitutes the primary repository ofcontrol. It is empowered to examine any publication and to declare whetheror not, in its opinion, it is 'undesirable'. It may also, after due notice,declare subsequent editions of a periodical publication to be undesirable.Moreover, if motivated to do so in the public interest, the Board may gofurther to declare an undesirable publication to be 'prohibited'. The stingbehind prohibition in this sense is that the mere possession of a prohibitedpublication is tantamount to an offence.Procedurally, the Board is not obliged to call for objections beforemaking its decisions Š except in the case of future editions of a periodicalŠ nor is it expressly enjoined to abide by the rules of natural justice.11 Ordinance No. 5 of 1912.12 Act No. 6 of 1932.13 Act No. 37 of 1967.14 1974 and 1996 Revised Edition of Statutes.58 FREEDOM OF LITERARY EXPRESSION AND CENSORSHIP IN ZIMBABWEHowever, the modern judicial tendency is to insist on adherence to theserules particularly the right to a fair hearing, even where the statute inquestion is silent on the point. The extent to which the courts would beprepared to assert their inherent power of review over the proceedings ofthe Board is a moot point. In any event, the merits of the Board's decisionsare explicitly made subject to appeal to the Censorship Appeal Board. Thelatter may confirm, vary or set aside any decision appealed against and,apart from the possibility of questions of law being referred to the SupremeCourt, the decision of the Appeal Board is final.The autonomy of the Board's decisions from Executive interventionwas significantly modified in 1989.15 In effect, the relevant Minister is nowempowered to override any decision of the Board which declares apublication to be undesirable or prohibited. In so acting, the Ministermust be satisfied that the decision of the Board is not in the publicinterest. The peculiarity of this position is, to say the least, not withoutconsiderable irony.LITERARY CENSORSHIP: SUBSTANTIVE CRITERIAThe substantive grounds for banning published matter are spelt out insections 13 and 33 of the Act. In essence, there are three broad categoriesof control, namely, that the offending publication:(a) is indecent or obscene or is offensive or harmful to public morals;(b) is likely to be contrary to the interests of defence, public safety,public order, the economic interests of the state or public health;or(c) discloses, with reference to any judicial proceedings, matter whichfalls within the ambit of category (a) or, with reference to matrimonialproceedings, particulars which are unnecessarily prejudicial to theparties involved.As regards category (a), the Act endeavours to amplify its intent insection 33. Material is deemed to be 'indecent or obscene' if it tends todeprave or corrupt the minds of those likely to be exposed to it or if it is inany way subversive of morality. A publication may also be obscene if itunduly exploits horror, cruelty or violence. Matter which is 'offensive topublic morals' is so characterised if it is likely to outrage or disgustpersons who are likely to read it. As for matter being 'harmful to publicmorals', this will be the case where it deals in an improper or offensivemanner with criminal or immoral behaviour.The permissible exceptions to the rule, viz. situations where ordinarilyundesirable matter may be published, are also enumerated in section 13.15 By section 4 of the Censorship and Entertainments Control Amendment Act. 1989 (No. 26 of1989).B. PATEL 59Apart from law reports and documents concerned with legal proceedings,the principal exception relates to publications of a technical, scientific orprofessional nature bona fide intended for use in any particular professionor branch of arts, literature or science. The other major exception is thatin respect of publications of a bona fide religious character.The inclusion of the exception in favour of religious materials needssome explanation. Prior to the amendment of the Act in 1989,16 the criteriafor undesirability included any matter which was 'likely to give offence tothe religious convictions or feelings of any section of the public'.17 Forobvious reasons, the presence of this ground for restriction rendered itnecessary to inscribe a correlative exception in favour of religiouspublications.18 The continued retention of the exception, despite theremoval of the restriction, is explicable on the basis that there may beother objectionable features (lewd or indecent references, for example)contained in religious literature; and that, notwithstanding such elements,the publication should not be proscribed so long as it serves a genuinereligious purpose.CONFORMITY WITH FREEDOM OF EXPRESSIONThere is little doubt that the restrictive provisions of the Act as describedabove impinge upon the freedom of expression. What needs to becanvassed, however, is whether these restrictions violate the juristicconception of that freedom. More specifically, do they fall within thebounds of the permissible limitations to the freedom of expression asembodied in the African Charter and in the Constitution of Zimbabwe?The Charter, as already indicated, subjects the exercise of rights andfreedoms to 'the rights of others, collective security, morality and commoninterest'. Similarly, the Constitution contemplates the possibility ofstatutory derogations to protect the public interest in its various aspectsand the rights and freedoms of others.Before addressing the restrictions currently in force, it may be ofinterest to consider the status of the restriction that was removed fromthe Act in 1989, namely, that against material giving offence to religiousconvictions. It might be argued that the freedom of conscience and religion19embodies a right to the serene enjoyment of one's conscience or religion.16 By sections 2 and 3 of Act No. 26 of 1989.17 The constitutionality of this restriction is discussed below.18 It should be noted that the saving of religious material does not necessarily extend to apublication simply because it deals with a religious theme or topic. To benefit from theexception, the publication must, in addition, serve some religious purpose. In South Africa,it was so held in Publication Control Board v Gallo (Africa) Ltd. 1975 (3) S.A. 665 (AD), ininterpreting an identical provision in the equivalent South African legislation.19 As guaranteed by Article 8 of the African Charter and section 19 of the Constitution.60 FREEDOM OF LITERARY EXPRESSION AND CENSORSHIP IN ZIMBABWEIf this is accepted, any outrage or insult to the religious feelings of abeliever would constitute an infringement of that person's rights.20Accordingly, any limitation imposed by the law against blasphemous orsacrilegious literature would constitute a justifiable restraint on the freedomof expression to the extent that it seeks to protect the rights of others. Asagainst all of this is the position that statements which insult or outrage aperson's religious feelings do not necessarily hinder his freedom tomanifest, propagate or practise his religion. Indeed, the more robust viewis that every new creed has evolved by way of impugning existing faithsand that the freedom of religion itself necessarily incorporates the right toattack existing religions.21 In between these diametrically opposed positionsis the view that statements or insults perpetrated with the deliberate andmalicious intention of affronting the religious convictions of others are aptfor legal suppression by virtue of their calculated tendency to provokepublic discord.22Reverting to the Act in its present form, it will be seen that the threecategories of control are designed to safeguard the public interest ingeneral, public morality in particular, and the rights and freedoms of otherpersons. Considered in the abstract, the measures and means used toattain these objectives appear to satisfy the judicial tests propounded todetermine what is reasonably justifiable in a democratic society.23 Thusregarded, it may be accepted that these restrictions are broadly compatiblewith the dictates of the Charter and the Constitution and that they aretherefore unobjectionable in principle.24 It does not follow, however, thatthe practice necessarily conforms with theory or with the notion ofdemocratic reasonableness. It may therefore prove illuminating to examine20 Cf. the decision of the Court of Appeal in the English case of R v Lemon and Gay News Ltd.1979 A.C. 617, confirming a conviction for blasphemous libel arising from the publication ofa poem metaphorically attributing homosexual acts to Jesus Christ. The decision has beencriticised for 'extending the bounds of criminality to serious literature, which is endangeredwhenever it couples sex with religion, irrespective of the pureness of its purpose' ŠRobertson, Obscenity (1979, 242).21 Cf. the comments in the Encyclopedia of the American Constitution, Vol. 3, at p. 1542, relativeto the First Amendment to the United States Constitution.22 The international furore occasioned by Rushdie's The Satanic Verses highlights the absenceof any real consensus in this extremely sensitive area of the law.23 See page 56, where the criteria fixed by the Zimbabwe Supreme Court are discussed.24 There are, inevitably, certain features of the Act that are not so readily defensible. The mostobvious candidate for attack is section 26 which criminalises the mere possession ofmaterial which is 'indecent or obscene' as defined or which has been prohibited' by theBoard of Censors. In a very recent judgement of the South African Constitutional Court,Case and Others v Minister of Safety and Security and Others 1996 (3) S.A. 617. similarlegislation was struck down as invading the right to personal privacy as well as violating thefreedom of expression. It was further held that this particular intrusion into personalprivacy failed the tests of reasonableness and justifiability which might otherwise haveoperated to save the impugned provision from nullification.B. PATEL 61the diverse publications that have been proscribed by the authorities inpractice.CENSORSHIP IN PRACTICE (1967-1985)25It comes as no surprise that the most saleable literature everywhere interms of readership appeal is that which deals with sex or with politics.The index of censorship is no exception to the preoccupation with thesetwo highly topical subjects Š the former, naturally enough, taking pride offirst place.The ocean of sex, to abuse a pun, is an exceedingly large and fertilespace and the human imagination is virtually boundless in its capacity toexploit its manifold bounty. And so it follows that the nets cast out tocatch obscenity, indecency and immorality happen to be correspondinglywide in their bid to fulfil the censor's moral mission.To begin with there was caught the exotically erotic designed toamuse and titillate at varying levels of prurience Š from the likes of LastTango in Paris and Shampoo (Robert Alley) Oh! Calcutta (Kenneth Tyrian)to the unquestionably more popular offerings of the infamous scarletwomen (Emmanuelle Arsan, Marilyn Chambers, Xaviera Hollander, JackieCollins and Linda Lovelace). Next came that elite crowd of classics whichby dint of their claims to literary merit were less likely to arouse the baserpassions, but which were tempered nonetheless as a matter of intuitivecaution Š MF, Napoleon Symphony and Earthly Powers (Anthony Burgess),Fanny Hill (John Cleland), The Black Book (Lawrence Durrell), Tropic ofCancer and Tropic of Capricorn (Henry Miller), Myra Breckinridge andMyron (Gore Vidal) Š many of which have since been unbanned. An evenmore exclusive group comprised the ancient and medieval classics ŠSatyricon (Petronius), The Perfumed Garden (Nefzawi), and The Kama Sutra(Vatsyayana) Š presumably suppressed on the basis that antiquity is noguarantee against libidinous arousal.Then there was that morally subversive mixture of bawd, satire andirreverence Š The Ginger Man and The Onion Eaters (J. P. Donleavy).Riotous Assembly, Indecent Exposure, Wilt and The Wilt Alternative (TomSharpe), Midpoint and Other Poems, Couples, Rabbit Redux and Marry Me(John Updike); followed closely by the smutty, salacious and scurrilous ŠThe Marx Brothers Scrapbook (Richard Anobile and Groucho Marx), How toTalk Dirty and Influence People (Lenny Bruce), Billy Connolly: The AuthorisedVersion (Duncan Campbell), The Essential Lenny Bruce (John Cohen), Ladies25 What follows is a brief survey of some of the myriad books banned by the Rhodesian andlater the Zimbabwean Board of Censors between the years 1967 and 1985. The startingpoint coincides with the inception of the present Act, while the terminal point is dictated bythe non-availability of any systematic compilation of censored literature after 1985.62 FREEDOM OF LITERARY EXPRESSION AND CENSORSHIP IN ZIMBABWEand Gentlemen, Lenny Bruce! (Albert Goldman), Hello Sailor (Eric Idle), ALittle Treasury of Limericks Fair and Foul (John Letts), Kiss Me Goodnight,Sergeant Major Š The Songs and Ballads of World War II (Martin Page).The next group was composed of matter which, although probablylearned and highly instructive, was to be eschewed by all simply becauseit might have fallen into the hands of the perverted few. Here we have thatmixed assemblage of sexually oriented sociological, psychological andhistorical studies Š Sex in Literature (John Atkins), The Prostitute in Societyand Prostitution and Morality (Benjamin, Harry and Masters), Sex Crimesand Sex Criminals (Alan Bentham), The Sociology of Sex (FernandoHenriques), A History of Pornography (Montgomery Hyde), Pornographyand the Law (Kronhausen, Eberhard and Kronhausen), Oriental Sex Manners(Howard Levy), Origins of Sexual Impulse (Colin Wilson), Sex Jokes andMale Chauvinism (George Fine); coupled with sex guides, manuals andencyclopedias Š You and Sex : A Family Guide (Robert Chartham), TheSex Book: A Modern Pictorial Encyclopedia (Goldstein, Harberle andMcBride), Sex in Marriage (Koble, Wendell and Warren), The Good SexGuide (Steward and Downes), The Illustrated Manual of Sex Therapy (HelenKaplan); as well as the less earthy texts concerned with astrology, dreamsand the occult Š Sexuality, Magic and Perversion (Francis King), TheSatanic Bible (Anton Lavey), 1001 Erotic Dreams Interpreted (GrahamMasterson), Sex and the Occult (Gordon Wellesley), Sex and the Stars(Martin Pentecost).Again, the sexual taboos peculiar to a racially segregated society werealso evidenced by the containment of material which might be taken tocommend or condone the possibility of inter-racial sex Š Black/White Sex(Grace Halsell), The Black Decameron (Leo Frobenius), Wanton BlackNurses (Manuel Marr), Black Stud (Robert Tralins).The final net was cast to catch that which was deemed positivelypernicious by virtue of its deleterious impact, real or imaginary, on theminds and psyches of its readers. Making up this group were the books,both fictive and analytical, dealing with homosexuality and lesbianism ŠLesbian Love Old and New (Walter Braun), The Homosexual Handbook(Angelo D' Arcangelo), The Joy of Lesbian Sex (Harris and Sisley), Gay LoveSigns (Michael Jay); publications advocating unrestrained resort to drugs,with or without sexual activity Š The Cannabis Experience (Berke, Josephand Hernton), The Politics of Ecstasy (Timothy Leary), LSD: TheConsciousness-Expanding Drug (David Solomon), Drugs and Sexuality(Solomon and Andrews), LSD: The Problem-Solving Psychedelic (Staffordand Golightly), Sex and Drugs: A Journey Beyond Limits (Robert Wilson);and works which were unduly concerned with violence, horror, tortureand sado-masochistic practices ŠSkinhead (Richard Allen), The History ofTorture Throughout the Ages (George Scott) as well as Dog Day AfternoonB. PATEL 63(Patrick Mann), The Marquis de Sade (Simone de Beauvoir), and therenowned A Clockwork Orange (Anthony Burgess).Moving into the political arena, we find that most of the publicationsconcerned were proscribed during the UD1 period (1965-1980) and weresubsequently unbanned in the years immediately after independence.Given the highly sensitive nature of the prevailing political climate, almosteverything that was perceived as being potentially subversive was declaredundesirable.This ranged from appeals to humanism and liberalism Š The Trumpetof Conscience and Strength to Love (Martin Luther King), Why Are We inVietnam? (Norman Mailer) Š to the radical extremism of Black Poweradvocacy Š The Autobiography of Malcolm X (Malcolm X and Alex Haley),Soul on Ice, On Lumpen Ideology and Revolution in the Congo (EldridgeCleaver), and Black Power (Stokley Carmichael and Charles Hamilton).Straddling the ground between was the vast array of nationalist writingsof varying political persuasions Š The Struggle Continues, Handbook ofRevolutionary Warfare and Class Struggle in Africa (Kwame Nkrumah),Revolution in Guinea (Amilcar Cabral), The Struggle for Mozambique(Eduardo Mondlane), The Gospel According to the Ghetto (Canaan Banana),Letters from Salisbury Prison and Frelimo Militant (Ndabaningi Sithole),Crisis in Rhodesia (Nathan Shamuyarira), Rhodesian Black Behind Bars(Didymus Mutasa), Zambia Shalt Be Free (Kenneth Kaunda), Origins ofRhodesia (Stanlake Samkange), An Ill-Fated People (Lawrence Vambe), andNo Easy Walk to Freedom (Nelson Mandela).Equally dreaded, though intellectually less accessible, were the worksof radical theorists, historians and commentators Š Black Skins, WhiteMasks and Toward the African Revolution (Frantz Fanon), Black Orpheus(Jean Paul Sartre), The Liberation of Guinea and In the Eye of the Storm(Basil Davidson), How Europe Underdeveloped Africa (Walter Rodney); aswell as the pamphlets and diaries of the Great Reds Š Principles ofCommunism (Friedrich Engels), Marxism and the Trade Unions (LeonTrotsky), and Bolivian Diary (Che Guevara). Again, it was also deemednecessary to avert the nefarious influence of political literature on youngminds Š Lenin for Beginners (Appignanesi and Zarate), The Little RedSchool Book (Hansen, Soren and Jenson), Student Power (Cockburn,Alexander and Blackburn).Then, of course, there were those works of imaginative literaturewhich were possibly more successful in their criticism of the status quo bydeploying the insidious device of interweaving political fact with socialfiction Š Why Are We So Blest? (Ayi Kwei Armah), Another Country (JamesBaldwin), Guerrillas (V. S. Naipaul), The Golden Note-Book and Nine AfricanStories (Doris Lessing), Coming of the Dry Season (Charles Mungoshi), andBlack Sunlight (Dambudzo Marechera).64 FREEDOM OF LITERARY EXPRESSION AND CENSORSHIP IN ZIMBABWELast but by no means least, and cutting across the conventionalpolitical lines, was that vanguard of feminist literature which challengedthe bastions of male domination Š The Female Eunuch (Germaine Greer),Sexual Politics (Kate Millett), Down Among the Women (Fay Weldon), Fearof Flying (Erica Jong), and The Women's Room (Marilyn French).SUBSTANTIVE AND EMPIRICAL PROBLEMSThe aforegoing survey hints at some of the problems of interpretation andapplication inherent in the task of literary censorship. Obviously, onecannot presume to comment on every conceivable facet of a functionwhich is as varied as the subject matter that it must contend with. Instead,I propose merely to broach two general points which highlight thedifficulties that bedevil the performance of the censor's mandate.The first relates to the notion of political freedom generally. It isaxiomatic that the proper functioning of any democracy is predicatedupon the existence of free channels of expression and information. Ofcourse, the forms of communication will vary from one time to anotherand from place to place depending on the material and technical resourcesavailable. But the extent to which ideas and information can bedisseminated without official hindrance provides a telling index of thedegree of political freedom at play in any given system.In the context of 'political' literature, the Zimbabwean experiencecogently illustrates the determinant role of official policy and practice inregulating the flow of such literature. The substantive and proceduralrules of censorship have not been significantly altered since 1967 Š norhas the constitutional definition of the freedom of expression. The factthat the Declaration of Rights has since 1980 been a justiciable one is notwithout consequence but cannot be regarded as a key factor in theliberalisation of political publications. Both before and after 1980, theconstitutional freedom was qualified by the injunction to subserve theinterests of public safety and public order and this was amply recognisedin the censorship laws. What has changed is the political environment inwhich executive power is articulated and exercised. In broad effect, thedominant ideology of a beleaguered minority has been supplanted by thatof a less monolithic majority. And it is this that has reshaped the officialperception of what is or is not politically acceptable for public consumption.Whatever the prevailing ideology, the notion of national or publicsecurity is not one of fixed content but rather a malleable concept capableof sustaining whatever interests the policy-maker may choose to pursue.The law is reluctant to interfere with the merits or correctness of anypolicy decision taken in this sphere Š unless the decision is shown to bemanifestly and grossly irrational. Given this latitude in the practicalB. PATEL 65application of the law, it is imperative that censorial discretion be exercisedwith great circumspection and with due deference to the political judgementof the reading public. After all, history has shown time and time again thatthe suppression of political ideas is the surest way of planting the seeds ofsubversion.The second fundamental issue concerns the notion of obscenity andthe yardstick by which it is to be measured. Here too, we are faced with aconcept which is inherently fluid and for which no universal and immutabletest can be devised. Social mores are eminently subject to regional andtemporal variation and the law is obliged to adapt if it is to avoid becomingobsolete.Applying the law in tune with the prevailing moral mood is fraughtwith difficulty in the post-modern world. Apart from the absence of anycoherent ideological perspective, no society or nation can lay claim tosocial or cultural uniformity. Of course, it may be possible in limitedcircumstances to invoke some form of 'national identity' or similar socialconstruct tending towards homogeneity. But the reality is one of nationsand societies divided by class, riven by race and further differentiated bylanguage, custom and religion. This social and cultural diversity renders itdifficult to devise any common moral standard Š even with respect tosomething so fundamental to the human condition as sex and sexuality.And even if some kind of 'domestic' standard could be formulated, itwould still be necessary to take into account the inescapable impact of'foreign' imports on local culture.There is also another level at which the definition of obscenity becomesproblematic. The question that arises is this: what behavioural responseis it that the law seeks to curb or eliminate? Is it feelings of disgust, thesense of shame, tendencies to sadistic cruelty, unbridled lust or merelythe sensual urge Š or is it all of these things?For instance, it has become legally fashionable to distinguish thetastefully 'erotic' from the distastefully 'pornographic'. The dividing line,however, is not an easy one to draw. It is one that invariably shiftsaccording to the sensibilities of the reader: his or her social upbringing,26 The English Court of Appeal, in R v Staniforth and Jordan [1976] 2 W.L.R. 849, at p. 856, hadto concede that:The difficulty, which becomes ever increasingly apparent, is to know what is thecurrent view of society. In times past there was probably a general consensus oiopinion on the subject, but almost certainly there Is none today. Not only in DOOKSand magazines, on sale at every bookstall and newsagent's shop, but on stage anascreen as well, society appears to tolerate a degree of sexual candour wnicn iiasalready invaded a large area considered until recently to He within the lorDiaoenterritory of the obscene . . . However conscientiously juries aPPr?a<\n '"'*responsibility, it is doubtful, in the present climate of opinion, whether tneir veruinscan be expected to maintain any reasonable degree of consistency.66 FREEDOM OF LITERARY EXPRESSION AND CENSORSHIP IN ZIMBABWEcultural background, age, education, psychological make-up, etc. Obscenity,so to speak, is in the mind of the reader Š largely a matter of subjectiveresponse.Even assuming the possibility of some objectively ascertainableresponse to what is obscene, the paradox is that the charge of obscenitymay be avoided by raising the 'aversion' defence. The argument, so itruns, is that material cannot be deemed obscene if it is so revulsive that itdiscourages the sexual drive rather than stimulates it. This argument,although verging on sophistry, has been propounded and accepted inseveral instances as a means of exculpating literature of merit.27CONCLUSIONIn the preceding pages, I have endeavoured to articulate the difficulties ofcensorship flowing from the highly subjective nature of political andmoral judgement and the problems of subordinating that judgement toclearly discernible objective criteria. These considerations must inevitablyraise the question that lurks behind any serious discussion of censorship:should literature be subject to censorship at all?The question is not new and certainly not peculiar to our times. In1644, John Milton penned his eloquent plea to the English Parliament,under the title 'Areopagitica', in favour of the unlicensed printing of books.In this powerful polemic against censorship, he likened the attempt tokeep out evil doctrine to 'the exploit of that gallant man who thought topound up the crows by shutting his park gate'.In 1979, the Williams Committee on Obscenity,28 in recommendingcertain reforms to the prevailing English law, proposed thatThe printed word should be neither restricted nor prohibited since itsnature makes it neither immediately offensive nor capable of involvingthe harms we identify, and because of its importance in conveying ideas.Milton would certainly glow at this confirmation of his pronouncementsŠ but he would also feel affronted that Parliament had still not heeded hisplea over three centuries later. And this despite his resounding entreaty,'Give me the liberty to know, to utter, and to argue freely, according toconscience, above all liberties.'27 The most noteworthy instance being the decision of an American court in US v One BookCalled Vlysses'5F. Supp. 182 (SDNY 1933) holding that,Whereas in many places the effect of Ulysses upon the reader undoubtedly issomewhat emetic, nowhere does it tend to be aphrodisiac.In Roth v US (1957) 237 Fd. 796, the court captured the irony that.If the argument be sound that the legislature may constitutionally provide punishmentfor the obscene because, anti-socially, it arouses sexual desire by making sexattractive, then it follows that whatever makes sex disgusting is socially beneficial28 Report of the Committee on Obscenity and Film Censorship (Cmnd. 7772/1979), para. 13.4.6.B. PATEL 67If the problems adverted to earlier are adequately pondered, I think itwill be fairly evident that the practice of censorship in most instances isbound to be informed largely by subjective considerations. However, thesubjectivity inherent in this process does not necessarily entail itscondemnation on strictly juristic grounds. As already indicated, the lawswhich enable censorship are generally defensible as permissiblederogations from the freedom of expression, while the rules which governthe exercise of censorial discretion tend to restrain interference by thecourts. In any event, insofar as concerns politics or morality, it is probablyfair to say that the strain on judicial objectivity in these spheres is especiallyacute. We are thus left with a situation where both the process of censorshipand its legal scrutiny are fraught with the possibility of arbitrariness. Andif these assumptions are correct, as I believe they are, it seems difficult toavoid the conclusion that the censorship of literature cannot as a rule bejustified if the freedom of literary expression is to be exercised withoutarbitrary interference.