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Legal Monitor - Issue 63
Zimbabwe Lawyers for Human Rights (ZLHR)
September 20, 2010

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Victory: Gukurahundi pictures case goes to Supreme Court

Visual artist Owen Maseko's trial on charges of unlawfully exhibiting Gukurahundi artistic images is now on hold.

This was after a Magistrate granted an application by Maseko's lawyers for the Supreme Court to determine whether criminalising creative arts infringes on the freedom of expression and freedom of conscience.

Magistrate Ntombizodwa Mazhandu made the ruling on Saturday, and said it was a fact that Gukurahundi--military killings of over 20 000 civillians in Matabeleland and Midlands-did happen in the early 80s.

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.

"It is not a secret that Gukurahundi did happen. That it happened in Matabeleland is not a secret. I don't see how the application before me is frivolous and neither is it vexatious," she said. "It follows within the restrictions and the requirements by the law. Therefore I am referring this matter to the Supreme Court to decide on the points that have been raised by the accused person," said Mazhandu, who on Thursday visited the Bulawayo National Art Gallery to carry out an inspection in loco of Maseko's exhibition.

The ruling means that Maseko's trial will be postponed indefinitely 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.

Maseko, the lawyers stated, only translated his thoughts (because he had the freedom of thought under the Constitution) into a visible form (because he had the freedom of expression). Like any artist, Maseko opened himself to legitimate comment and criticism.

They said Maseko's exhibition was an expression of his artistic abilities, to which all persons who had an appreciation of artistic value were entitled to scrutinise, comment on or criticise as they deemed fit.

The lawyers said the prosecution of the talented visual artist was calculated to curtail his freedom of thought (conscience) and expression.

Jamela, Chanayiwa and Bamu argued that the abrupt stopping and prohibition of Maseko's exhibition curtailed the artist's right to freely express his views and opinion through art.

Earlier in the week, Maseko's lawyers secured another victory when the State was forced to drop charges against the artist when he appeared in court.

Maseko's lawyers successfully challenged an attempt by Zvekare to introduce a new charge against the visual artist. Zvekare, who travelled 400 km from Harare to prosecute in Maseko's case at Tredgold Magistrates Court in Bulawayo, sought to put a new charge to Maseko, which was 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, arguing that this was calculated to prejudice and embarrass their client.

In her ruling, Magistrate Mazhandu said the State could only bring new charges against Maseko if the first charges had been withdrawn before plea.

After Magistrate Mazhandu's ruling, the State withdrew the earlier charges and sought to prefer the new charge against Maseko. He was formally charged of the new charges after he signed a warned and cautioned statement at Bulawayo Central Police Station last Wednesday. The visual artist 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 characterisaed the civil unrest known as Gukurahundi, was forc ibly shut down and the artist 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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