sexual health and human rights in the african region - The ICHRP

(e) publicly exhibits any indecent show or performance or any show or performance tending to
corrupt morals, commits a misdemeanour and is liable to imprisonment for two years or to a fine
of two thousand shillings. 841
In terms of case law among the sample, Zimbabwe and South Africa provide the
illustrations of the application of censorship law as a limitation in relation to
sexual health. In Gays and Lesbians of Zimbabwe v The Chairman of the Board of
Censors and the Minister of Home Affairs 842 the High Court of Zimbabwe set aside
an order issued by the Board of Censors prohibiting the Gays and Lesbians
Association of Zimbabwe from mounting an exhibit or display at an
international book fair purported using powers under section 17(1) of the
Zimbabwean Censorship and Entertainments Control Act.
[13] Section 17(1) of the Zimbabwean Act gives the Censorship Board the power to
prohibit ‘the public exhibition or intended exhibition of any publication on the
ground that that ‘it is likely to be associated with breaches of the peace,
disorderly or immoral behaviour or abuses relating to the consumption of
alcohol or drugs’. Section 17 is part of an Act that prohibits a publication that is
‘undesirable’. A publication is undesirable if it is ‘indecent or obscene or is
offensive or harmful to public morals or is likely to be contrary to public
health’. 843 Indecent or obscene means having a ‘tendency to deprave or corrupt
the minds of persons who are likely to be exposed to the effect or influence
thereof’. 844 However, the court did not consider this provisions as it was able to
set aside the order of the Censorship Board without considering the content of
what was to be displayed at the book fair. The High Court held that the order
issued by the Censorship Board was deficient as it did not specify precisely what
it was prohibiting. The order sought to prevent the Gays and Lesbians
Association of Zimbabwe from mounting a display but without in fact indicating
the nature of the thing that would have been displayed. In essence, the Board did
not know what was to be displayed. Furthermore, the order referred to what it
sought to prohibit as ‘a stand or exhibiting’ without drawing a distinctions
between these two concepts.
[14] The right to freedom of expression guaranteed by section 16 of the South African
Constitution has been litigated in South Africa in the context of distribution of
pornographic material. Prior to the 1996, pornography was regulated by the
Indecent or Obscene Photographic Matter Act of 1967 and the Publications Act of
1974. The Acts used a Christian moral perspective to determine what was
indecent or obscene. Section 1 of the Publications Act expressly provided that: ‘In
841 Section 166 of the Penal Code (Uganda). Emphasis added.
842 Gays and Lesbians of Zimbabwe v The Chairman of the Board of Censors and the Minister of Home Affairs
HC6492/96 (High Court of Zimbabwe).
843 Section 11 of the Censorship and Entertainments Control Act (Zimbabwe).
844 Section 27 ibid.
224