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State forced to drop charges against Maseko but contemplates bringing new charges
Zimbabwe Lawyers for Human Rights (ZLHR)
September 13, 2010

Lawyers representing tormented Gukurahundi visual artist Owen Maseko on Monday 13 September 2010 secured victory when the State was forced to drop charges against the artist when he appeared in court.

Maseko's lawyers Lizwe Jamela, Nosimilo Chanaiwa and Jeremiah Bamu of Zimbabwe Lawyers for Human Rights (ZLHR) successfully challenged an attempt by State prosecutor Tawanda Zvekare to introduce a new charge against the visual artist.

Zvekare, who travelled all the away from Harare to prosecute in Maseko's case at Tredgold Magistrates Court in Bulawayo sought to put a new charge to Maseko, which is different from the one in respect of which he was placed on remand.

Maseko was placed on remand on charges of undermining the authority of or insulting the President and causing offence to persons of a particular race or religion.

But Zvekare sought to bring in new charges of breaching Section 31 of the Criminal Law (Codification and Reform) Act Chapter 9:23 by allegedly publishing or communicating falsehoods prejudicial to the State and an alternative charge of violating Section 33 of the Criminal Law (Codification and Reform) Act Chapter 9:23 by undermining the authority of insulting the President.

Maseko's lawyers objected to this, and argued that this was calculated to prejudice and embarrass their client. The lawyers argued that Maseko is on remand in respect of a particular charge, which has not been disposed of and hence it is not legally tenable to have both charges hanging over the artist's head.

They indicated that their client would not know which charge to prepare for under the circumstances. The lawyers pointed out that there is no procedure which allows the State to substitute a less serious charge for a more serious charge.

In her ruling, which was delivered Monday afternoon Magistrate Ntombizodwa Mazhandu ruled that the State can only bring new charges against Maseko before plea if the first charges have been withdrawn before plea.

After Magistrate Mazhandu's ruling the State withdrew the earlier charges and sought to prefer the new charge against Maseko.

Defence lawyers again objected to this, arguing that the charge on which Maseko had initially been brought to court is no longer there and added that if the State is to bring in new charges, it has to do so in the proper manner.

Subsequently, the State undertook to facilitate the opening of a new record in respect of the proposed new charge.

Defence lawyers have prepared a warned and cautioned statement in respect of this new charge, which will be officially signed on Tuesday 14 September 2010 at 09:00hrs. Thereafter, lawyers will proceed to view the exhibition and obtain all exhibits sought to be produced by the State as well as obtain witness statements.

Maseko's trial on new charges is expected to commence on Wednesday 15 September 2010 after his lawyers would have prepared a defence outline.

Maseko was arrested in March for staging an exhibition in Bulawayo depicting the 1980's Matabeleland massacres carried out by troops loyal to President Robert Mugabe's previous government. The exhibition, which showcased paintings that explored the torture and massacres that characterized the civil unrest known as Gukurahundi, was closed when the artist was arrested.

Recently, the government invoked the Censorship and Entertainment Control Act to ban the exhibition of Maseko's paintings at the Bulawayo National Art Gallery charging that they portrayed "the Gukurahundi era as a tribal biased event."

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