HARARE – Constitutional Court judges have summoned Justice minister Emmerson Mnangagwa to justify the constitutionality of prosecuting a Bulawayo-based artist charged under the old constitution for publishing falsehoods.
The court summoned Mnangagwa in a case in which Bulawayo-based visual artist Owen Maseko was seeking stay of prosecution, after being arrested for publishing falsehoods through “offensive” Gukurahundi paintings.
“It has not been shown that Section 31(a)(i) and 33 (a)(ii) of the Criminal Procedure and Evidence Act Chapter 9:23 are not in contravention of Section 20(i) of the former constitution,” the constitutional court ruled yesterday.
“Section 24 (5) of the former constitution therefore apply.
“Minister of Justice, Legal and Parliamentary Affairs is hereby called upon, if he saw wishes before the Constitutional Court on 20 November 2013 at 9:30am to show cause why Sections 31(a)(i) and 33(a)(ii) of the criminal code should not be declared to be in contravention of Section 20(i)… of the former constitution.”
The paintings of the Gukurahundi massacres, as well as their exhibition, landed Maseko a six-day stay in police custody.
Maseko, one of the country’s most talented artists, through his lawyer Zvikomborero Chadambuka, yesterday told the court that artistic creativity constituted freedom of expression, adding that when that freedom is restricted, courts should always intervene.
“Freedom of expression does not arise by way of State licence. It is a constitutional right,” Chadambuka said.
He further told the court that the law should not provide too much leeway to the enforcer, arguing that freedom of expression was central to democratic principles.
“It is impossible to pull out a grain of fact and allege that someone meant something. We are criminalising someone based on somebody’s subjective interpretation,” Chadambuka said.
However, Chris Mutangadura from the National Prosecuting Authority said the law provided limitations to the conduct.
He said Section 61 (5) of the current Constitution gives right to freedom of expression and that excludes inciting violence, promoting hate speech or malicious attack on a person’s privacy or dignity.
Chief Justice Godfrey Chidyausiku, asked Mutangadura to justify why he wanted the matter to be dealt with in terms of the new Constitution, when the application was restricted to the old constitution.
He said prosecution must not proceed when at the time of the commission of the alleged offence, the offence was not criminal in nature.