Lawyers representing visual artist Owen Maseko have filed an application seeking the Supreme Court — sitting as the Constitutional Court — to determine whether or not criminalising of creative arts infringes on freedom of expression and freedom of conscience.
The application was filed at the Bulawayo Magistrates’ Court.
The lawyers — Lizwe Jamela, Nosimilo Chanayiwa and Jeremiah Bamu of Zimbabwe Lawyers for Human Rights — filed the application before magistrate Ntombizodwa Mazhandu.
State prosecutor Tawanda Zvekare has opposed the application.
Mazhandu said she would not be in a position to determine the matter without first having sight of the exhibits.
She was expected to meet the lawyers and Zvekare in her chambers yesterday to consider the issues that she raised.
In their application the lawyers argued Maseko’s fundamental rights, provided for in the Constitution of Zimbabwe, and other international human rights instruments to which Zimbabwe is a party, were violated.
The lawyers want the Supreme Court to 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.
They also want the Supreme Court to determine whether or not bona fide works of artistic creativity could 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.
The lawyers argued 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 artworks and when the government invoked the Censorship and Entertainment Control Act to ban his paintings at the Bulawayo National Art Gallery.
The lawyers allege that these rights were still being violated and continued to be violated through pressing these present charges against him.
Art, they said, 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 only translated his thoughts (because he has the freedom of thought under the Constitution) into a visible form (because he has the freedom of expression). Like any artist, Maseko opened himself to legitimate comment and criticism,” his lawyers argued.
The lawyers said the net effect of the current proceedings against the talented visual artist was calculated to curtail his freedom of thought (conscience) and expression.
The abrupt stopping and prohibition of his exhibition curtailed the artist’s right to freely express his views and opinion through art.
Meanwhile, Maseko was indicted on the new charges after he signed a warned and cautioned statement at Bulawayo Central Police Station on Wednesday.