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Magistrate refers Maseko's application to Supreme Court
Zimbabwe Lawyers for Human Rights (ZLHR)

September 18, 2010

Bulawayo Magistrate Ntombizodwa Mazhandu on Saturday 18 September, 2010 granted an application filed by lawyers representing visual artist Owen Maseko seeking a referral of his matter to the Supreme Court to determine whether criminalising creative arts infringes on freedom of expression and freedom of conscience.

In her ruling Magistrate Mazhandu referred the application filed by Maseko's lawyers Lizwe Jamela, Nosimilo Chanayiwa and Jeremiah Bamu of Zimbabwe Lawyers for Human Rights (ZLHR) to the Supreme Court after accepting that the application was not frivolous and vexatious.

The Magistrate said it was a fact that Gukurahundi-military killings of over 20 000 civillians in Matabeleland and Midlands-did happen.

Magistrate Mazhandu said the Supreme Court should decide on the points that were raised by the lawyers in their application.

The ruling means that Maseko's trial will be postponed sine die until the finalisation of the case in the Supreme Court.

The lawyers filed their application before Magistrate Mazhandu last Wednesday. State prosecutor Tawanda Zvekare was opposing the application. Maseko's lawyers stated that the artist's fundamental rights, provided for in the Constitution of Zimbabwe and other International Human Rights Instruments to which Zimbabwe is a State party, were being violated.

The Supreme Court will now make a determination on the violation of the protection of the artist's freedom of expression as enshrined in Section 20 (1) of the Constitution of Zimbabwe, the protection of freedom of conscience, particularly freedom of thought guaranteed in terms of Section 19 (1) of the Constitution and the protection of the law as provided in terms of Section 18 (1) of the Constitution.

The Constitutional court will now determine whether or not bona fide works of artistic creativity can be subjected to prosecution under Section 31 and 33 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) without infringing on the provisions of Sections 18 (1), 19 (1) and 20 (1) of the Constitution of Zimbabwe.

In their application Jamela, Chanayiwa and Bamu argued that Maseko's freedoms of expression and thought as guaranteed by Sections 20 (1) and 19 (1) of the Constitution of Zimbabwe respectively were violated repeatedly at various stages when he was arrested in March after the police outlawed his art works and when the government recently invoked the Censorship and Entertainment Control Act to ban his paintings at the Bulawayo National Art Gallery.

The lawyers alleged that these rights were still being violated and continued to be violated through pressing fresh charges against the artist.

The lawyers stated that art was a professional trade that could never lend itself to one conclusive interpretation and was an idea or thought that was developed over time, and then presented in visible form for public scrutiny.

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