Owen Maseko v The State; Pishai Muchauraya v The State

Owen Maseko, on 25-26 March 2010, exhibited paintings and drawings at the Bulawayo National Art Gallery depicting thoughts on the social effects of the historical event known as Gukurahundi. He was charged with contravening s 31(a)(i) of the Criminal Law (Codification and Reform) Act for allegedly publishing false statements with the intention of inciting public disorder or violence, and alternatively with contravening s 33(2)(a)(ii) for making statements about the President that could cause hatred, contempt or ridicule. The allegations included that his works suggested the President used Gukurahundi to force ZAPU to sign the Unity Accord with ZANU in 1987. Pishai Muchauraya, on 8 October 2006, addressed a public gathering at Makoni Business Center Murambinda in Buhera. As a member of MDC-T, he allegedly stated that the President was 82 years old and unwell, and should not extend his term of office. He was charged under ss 33(2)(a)(i) or (ii) for making false statements about the President intended to cause hatred, contempt or ridicule. Both accused raised constitutional challenges to the statutory provisions under which they were charged, alleging violations of fundamental rights to freedom of conscience and expression under the former Constitution.

• Whether sections 31(a)(i) and 33(2)(a)(ii) of the Criminal Law (Codification and Reform) Act violate the fundamental rights to freedom of conscience and freedom of expression enshrined in sections 19(1) and 20(1) of the former Constitution
• Whether the facts alleged in each case disclosed the essential elements of the offences charged
• Whether works of art and political speech expressing opinions on historical events or political matters can constitute criminal offences under the impugned statutory provisions
• Whether statements that are factually true (the President's age, the occurrence of Gukurahundi) can form the basis of criminal charges for making false statements

Both constitutional matters (SC 60/11 and SC 63/11) were struck off the roll with no order as to costs.

While the Court did not establish binding precedent on the constitutional validity of the challenged provisions (as it struck the matters off the roll without determining that question), it established the following binding principles: (1) For a statement to constitute an offence under sections 31(a)(i) and 33(2)(a)(ii) of the Criminal Law Code, it must be a false statement, not a statement of fact or opinion derived from facts; (2) Works of art are naturally open to diverse interpretations by viewers and cannot be criminalized based solely on one particular interpretation placed on them by authorities; (3) For the offence of incitement to violence through false statements, there must be facts showing that the statement is capable of and intended to produce the prohibited consequences (incitement, hatred, contempt, ridicule) in the minds of right-thinking people; (4) Not every false statement about the President, even if intended, has the potential to produce the prohibited consequences required for criminal liability; (5) Merely alleging the essential elements of an offence without setting out facts showing conduct that would constitute those elements is insufficient to ground a criminal charge; and (6) Political speech expressing opinions about whether a political leader should continue in office, based on factual premises like age, is protected expression and does not constitute incitement to violence.

The Court made several non-binding observations: (1) The magistrate in Maseko's case properly recognized that raising the constitutional question was not frivolous or vexatious; (2) The magistrate in Muchauraya's case erred in finding the constitutional challenge frivolous (the State properly conceded this); (3) The Court noted that in Maseko's case, 'it is not clear from the facts why the police and prosecuting authority state that the paintings and drawings expressed the idea that the President used the Gukurahundi event to coerce the then PF-ZAPU political party to sign the Unity Accord,' particularly given that the legends did not reference this allegation; (4) The Court observed that unsolicited political advice from opposition politicians about when a leader should leave office 'is the kind of unsolicited advice a politician in opposition in a democracy would be prone to giving without intending to excite his or her audience to public violence'; (5) The Court commented that founding a criminal charge on a statement that was factually true (the President's age) 'was unfortunate'; and (6) The Court noted that the requirement under s 33(2)(a) that the accused must know or realize there is a real risk the false statement 'may' have prohibited consequences 'was lost to the prosecuting authority.'

This case is significant in Zimbabwean constitutional jurisprudence for several reasons: (1) It affirms the protection of artistic expression and political speech under the constitutional right to freedom of expression; (2) It establishes that works of art depicting historical events and their social effects, even controversial ones, are entitled to constitutional protection and cannot be criminalized merely because authorities place a particular interpretation on them; (3) It clarifies that statements of fact or opinions derived from facts cannot form the basis of criminal charges for making 'false statements'; (4) It demonstrates the importance of proper prosecutorial discretion in ensuring that charges are based on facts that actually constitute the essential elements of an offence; (5) It illustrates the court's willingness to examine whether facts alleged in a charge actually disclose an offence before proceeding to determine constitutional questions; and (6) It reinforces the principle that criminal law provisions restricting expression must be applied narrowly and cannot be used to criminalize legitimate political discourse or artistic expression about historical events.