adminZvamaida Murwira Senior Reporter
Parliament faces an onerous task when it sits to deliberate whether to criminalise non-consensual publication of revenge pornography, commonly known as sex tapes, by partners whose relationship has gone sour.
This followed a petition to Parliament by Katswe Sistahood, a women pressure group championing observance of Sexual Reproductive Health and Rights, calling for the legislature to enact a law criminalising publication on social and conventional media of sexually explicit materials mostly done by ex-partners to spite their exes.
In Zimbabwe, and probably globally, there has been a proliferation of cases in which disgruntled men and women distribute sexually explicit material in a bid to humiliate their ex-partners.
Speaker of the National Assembly Advocate Jacob Mudenda recently referred to the relevant portfolio committee a petition by Katswe Sistahood led by Ms Debra Mwase, who submitted that there was need for legislation against malicious distribution of sex tapes.
The Portfolio Committee on Justice, Legal and Parliamentary Affairs led by Harare West MP Ms Jessie Majome (MDC-T) is now seized with the petition.
In her submission this week before the committee, Ms Mwase argued that the publication on social media of sexually explicit material was not consistent with the desire to observe Sexual Reproductive and Health Rights, adding that it had the effect of humiliating women who constitute the bulk of victims of such acts.
Acting Prosecutor-General Advocate Ray Goba said he disagreed with the pressure group on the need forseparate legal instruments, saying current legislation was adequate to deal with the mischief.
But Ms Mwase argued that the Censorship and Entertainment Control Act, Criminal (Codificationa and Reform) Act and Posts and Telecommunications Act, though criminalising distribution of offensive material, did not address the emerging phenomenon.
“We acknowledge that the current legislation was enacted prior to the proliferation of smartphones and generally does not cover many of the acts committed using social media. The Censorship and Entertainment Control Act [Chapter 10:04] which covers various aspects of pornography was promulgated 49 years ago in 1967 and was last amended 15 years ago in 2001 yet there has been rapid technological advancement,” said Ms Mwase.
She said the PTC Act [Chapter 12:05] was promulgated 16 years ago in 2000 and the relevant section relating to the sending of obscene messages on the telephone had never been amended.
“Cyber-based crimes are also provided in Chapter VIII of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which was promulgated in 2004, the relevant sections are yet to be amended.
“There have been technological developments since the amendments – like Facebook (2004), Twitter (2006) Instagram (2010) WhatsApp (2009). Internet use in Zimbabwe rose from 4,8 percent in 2010 to 45,1 percent in 2015 (POTRAZ). The law is falling behind the changing behaviour of society and does not adequately address the harassment and abuse that women face due to the developments in technology. Relying on other pieces of the law has the potential of downplaying the real crime,” she said.
Ms Majome asked whether the current laws had been tested or invoked by the victims for one to say they were inadequate.
Mazowe South MP Cde Fortune Chasi (Zanu-PF) wondered how a line would be drawn between malicious publication and excitable distribution by one partner notwithstanding the absence of consent from the other partner.
“Somebody might just be excited that he has been with someone in her natural suit and decide to publicise it. That element of revenge is not there. Besides why would one say revenge pornography only affects women? Was there research conducted for that?” asked Cde Chasi.
Proportionate Representative MP Ms Priscilla Misihairabwi-Mushonga wanted to know how other countries dealt with such cases.
Another member of Katswa Sistahood, Ms Tendai Garwe, said although no research was done they had observed that the vice affected mostly women.
Legal counsel for the organisation Mr Jeremiah Bhamu said all current laws did not make specific mention of revenge pornography hence the need for a new law.
Ms Mwase said countries like South Africa, Nigeria, New Zealand and the United Kingdom, among others, were at different stages of enacting such laws while others have since promulgated them.
In response Advocate Goba said couples who recorded sex tapes were liable to prosecution in terms of the Censorship and Entertainment Control Act and other legal statutes.
Adv Goba said it was a misconception that one party could escape liability if another partner maliciously distributed the tape to third parties.
The portfolio committee called Adv Goba to give his views on submissions by the pressure group.
In his response before the committee, Adv Goba said the Censorship and Entertainment Control Act, Criminal Codification and Reform Act and Postal and Telecommunication Act and the Cyber Crime Bill were several legal provisions that the State could invoke hence there was no need for another law.
“The Censorship and Entertainment Control Act law remains in force until the Constitutional Court strikes down certain provisions of that particular law. Now what you are suggesting is that two people in the comfort of some place take photographs of each other of a sexual nature for their own records or reference, at that stage, both of them are liable to prosecution under that provision,” said Adv Goba.
“I don’t think it’s a situation that favours one party against the other because both of them have consented to taking of pictures in circumstances where they foresee, subjectively, that those pictures might fall in the wrong hands. If the intention of the law is to protect photographic materials which have been recorded privately but there is an inherent risk that it might fall in the wrong hands. It doesn’t matter how you distribute them, if you do through electronic process then you might be violating other statutes.”
Earlier on former radio personality and actress Ms Tinopona Katsande had told the committee that she did not get cooperation when she reported to police after her ex-partner distributed their sex tape.
Deputy Prosecutor-General Mrs Florence Ziyambi said if any person was aggrieved by the failure by police to act on a complaint they were free to approach the PG’s Office which would in turn direct the law enforcement agency to investigate and submit to them a report.
“We have a duty in terms of the Constitution to direct the police to investigate,” said Mrs Ziyambi.
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