The film tells the love story of two Xhosa men who are in the mountains undergoing the tradition of ulwaluko – male circumcision.

The subsequent re-rating by the Tribunal to an exaggerated rating of X18 – on par with hard porn and one step away from an outright ban – was justified on the basis of a contravention of its classifiable Sex, Language, Nudity, Violence and Prejudice offenses as reasons for its rating. This new classification has the direct effect that Inxeba can only be distributed from designated (licenced) adult premises as defined by the Films and Publications Act (the Act), and unlike the previous ruling, cannot be screened in cinemas. This classification of the film, pending appeal, will see Inxeba enjoying the dubious reputation of being the first non-pornographic film to be so classified.

Complaints were lodged by the Congress of Traditional Leaders (Contralesa) and the Man and Boy Foundation, based on their perceptions that cultural insensitivities of its members have been breached and that the practice of ulwaluko, shrouded in secrecy by both initiates and their communities since time immemorial, have been distorted and misused. Additionally, the two organisations objected to the strong language used in the film. Because of action of these two organisations in particular, Inxeba has since been removed from cinemas countrywide, but is circulating widely on the internet. The makers of the film however, have defended the movie on the basis that it does not expose or reveal details about a sacrosanct cultural practice but is essentially a love story between two men who happen to be in the mountains undergoing a cultural ritual.

The re-rating of the film and its denigration to X18 rating behoves the consideration of the supreme law of the land, the Constitution. Crucially, chapter two, the Bill of Rights, which encompasses a wide range of rights and freedoms which must coexist in a democracy. On the one hand, the right of the filmmakers and other artists to examine social issues – including those highlighted by Inxeba – reside within the protection of freedom of expression, per section 16 of the Bill of Rights. On the other hand, the cultural tradition of ulwaluko is protected under cultural rights, section 31, as well as equality and human dignity, sections 9 and 10.  That the initiation process is sacred to those that practice it, is not in dispute.  The healthy tensions that must be maintained between these rights is what is at play and each must be finely balanced with, and sometimes against, each other. Any limitation placed on the full enjoyment of these rights must meet constitutional muster.

The film is important in contemporary South Africa and touches on issues that are of a highly sensitive nature, including that of male circumcision and the secrecy around this practice. In essence, however, it is about homosexuality. That sections of the population are deeply uncomfortable with issues of sexuality and the reality of gay and lesbian men and women who live with and amongst us is of course true. Multiple instances of homophobic acts and ‘lesbian killings’ have sadly dogged South Africa, and shifting our gaze away is not an adequate response. The question to ask is whether the discomfort experienced by many of the film’s content, trumps vital constitutional protections – not only to artistic expression but vitally also by the right of gay and lesbian men and women to choose their sexual orientation and live free of harm and violence.

Freedom of expression advocates have questioned whether notions of homophobia and patriarchy have prevailed in the X18 rating and these may well inform an appeal to the decision of the Film and Publication Board Appeal Tribunal. A more direct parallel, however, is that of the Spear painting, which was defaced because it was considered offensive to former President Zuma, for depicting his private parts. The artist and Gallery contested the right to show the piece of art as political commentary and ultimately the Film and Publication Board did not censor the painting, in spite of the outrage from some quarters.

The censoring of Inxeba, it has been argued, serves to erase the realities, voices and stories of gay and lesbian men and women and contravenes foundational values of the Constitution in respect of equality and non-discrimination. ‘Othering’ and denying private choices of large numbers of the population is contrary to the spirit of our Constitution, as is the suppression of artistic expression, both of which are key to next steps in the process.

As was successfully argued with the Spear painting, it is insufficient to censor Inxeba based on the sensitive content of the film. An objective standard must be used to examine the film and its effects on society, including direct harm to individuals and communities. The Limitation Clause in the Constitution requires a justifiable reason of proof of harm and non-violation of human dignity and equality.

Public discourse on the practice of ulwaluko is in the public domain, not to question its merits or demerits, but because of the seasonal numbers of mutilations and deaths of young men at the hands of ill-trained and illegal initiation schools. The Draft Customary Initiation Bill is high on the order of parliamentary work for 2018. It aims to regulate and safeguard the practice of initiation. This is an extremely progressive step, as has been argued by the Centre for Unity in Diversity in its submission on the Bill. The protection from harm of young men in the prime of their lives is the key consideration of this proposed legislation.

Per its constitutional mandate, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) has also investigated and commissioned a report on the subject, and has weighed in on the rating of the film. Its position on the matter has been both praised and criticised, on the one hand for protecting a cultural practice and on the other for not protecting freedom of artistic expression respectively.

Dignity, equality, freedom of expression – amongst a myriad of freedoms – are the component parts of our robust democracy. Respect for and protection of these rights are key. Inxeba and other forms of artistic expression may elicit feelings of discomfort, outright criticism and harsh critique, but the precepts of constitutional values must hold steadfast. The relegation of Inxeba on par with hard porn is detrimental to the values we must jealously guard.

By Ms Zohra Dawood, Director

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