In a ruling delivered on Saturday 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 ruling that it 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. 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 sine die (indefinitely) until the finalisation of the matter in the Supreme Court.
The lawyers filed their application before Magistrate Mazhandu last Wednesday which was opposed by State prosecutor Tawanda Zvekare.
In their application the lawyers stated that Maseko’s fundamental rights, provided for in the Constitution of Zimbabwe, and other International Human Rights Instruments to which Zimbabwe is a State party were violated.
The Supreme Court will now make a determination of 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 continue to be violated through pressing fresh charges against the artist.
They also stated that art is a professional trade that can never lend itself to one conclusive interpretation and is an idea or thought that is developed over time and then presented in visible form for public scrutiny.
Maseko, the lawyers stated, only translated his thoughts because he has the freedom of thought under the Constitution into a visible form. Like any artist, he opened himself to legitimate comment and criticism.
They said his exhibition is an expression of his artistic abilities, to which all persons who have an appreciation of artistic value are entitled to scrutinise, comment on or criticise as they deem fit.
The lawyers also said the prosecution of the talented visual artist is calculated to curtail his freedom of thought and expression. They added that the abrupt stopping and prohibition of his exhibition, curtailed the artist’s right to freely express his views and opinion through art.
Earlier in the week Maseko’s lawyers secured victory when the State was forced to drop charges against the artist when he appeared in court.
They successfully challenged an attempt by 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.
His lawyers objected to this, and argued that this was calculated to prejudice and embarrass their client.
The visual artist was arrested in March for staging an exhibition in Bulawayo showing massacres committed by the North Korean trained Fifth Brigade.