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Monitor - Issue 63
Zimbabwe Lawyers for Human Rights (ZLHR)
September 20, 2010
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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.
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
stated that the artist's fundamental rights, provided for in the
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.
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
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
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)
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.
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
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
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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