Lawyers stand up for persecuted artists

HARARE - Zimbabwe’s visual and performing artists have in the past years received pro bono legal representation from Zimbabwe Lawyers for Human Rights, ZLHR after their artistic productions were banned by police in conjunction with the Censorship Board.

Kumbirai Mafunda, a ZLHR information officer said the firm was a non-profit human rights organisation whose core objective is to foster a culture of human rights in Zimbabwe as well as encourage the growth and strengthening of human rights at all levels of Zimbabwean society through observance of the rule of law.

“ZLHR is committed to upholding respect for the rule of law and the unimpeded administration of justice, free and fair elections, the free flow of information and the protection of constitutional rights and freedoms in Zimbabwe and the surrounding region,” Mafunda said.

He said his organisation had on several occasions intervened in defence of theatre practitioners and artists’ expression in Zimbabwe.

“With the country going through a process of National Healing and Reconciliation after the deadly 2008 bloody elections that left hundreds of MDC supporters and members dead and thousands more displaced, ZLHR has intervened in defence of artists’ expression in various provinces,” said Mafunda.

The ZLHR has over the years represented a number of artists whose democratic rights had been curtailed by the police.

“In February last year, ZLHR fought on behalf of Rooftop Promotions and obtained an interdict from Bulawayo magistrate Rose Dube barring the police from prohibiting the theatre production group from staging a theatre performance entitled Rituals.

“In September last year, ZLHR also successfully challenged the police ban of the Gwanda-based Jahunda Community Theatre play entitled 1983, the years before and after,” said Mafunda.

The Daily News sat with Mafunda and brings to you some of the artists’ court cases and interdicts won by ZLHR.

Super Patriots and Morons — The first play to be banned after 1980


Zimbawe Lawyers for Human Rights helped Rooftop Promotions in launching a constitutional challenge to the Censorship and Entertainment Act of 1967 after government banned the play Super Patriots and Morons.

Produced by Daves Guzha, Rooftop Promotions’ first play to be banned in independent Zimbabwe, Super Patriots and Morons went on to be nominated for the Amnesty International 2007 Freedom of Expression award.

The play debuted in 2003 and featured an unnamed country whose economy had collapsed and was dominated by chronic shortages of basic commodities and long queues at every supermarket.

After being allowed to run for some time the play only caught the attention of the government at the Harare International Festival of the Arts (Hifa) that year.

Censors asked for the script before banning it.

The other play Pregnant with Emotions received similar attention from Mugabe’s regime with the police refusing to sanction performances at venues around the country.

Guzha blasted government’s paranoia saying it saw an agenda’s where none existed. He said there is a tradition of villages using, dare where people debate various kinds of issues and government is now trying to stifle this cultural practice.

Bulawayo magistrate quashes band on theatre play


Bulawayo magistrate, Tancy Dube, on September 14, 2011 quashed a police ban on a national healing theatre play aimed at exhorting peace and reconciliation after years of conflict in Zimbabwe.

The interdict came after Lizwe Jamela of Zimbabwe Lawyers for Human Rights (ZLHR) instituted urgent proceedings in the form of an ex-parte application challenging the police ban of the play entitled 1983, the years before and after.

The play, which sought to establish true national healing, peace and reconciliation was scheduled for Bulawayo Theatre.

Police had four days before the scheduled drama performance banned the public performance by Gwanda-based Jahunda Community Theatre group without giving any reasons for their actions.

But Jamela on September 14, 2011 filed an ex-parte application seeking to declare as unlawful the prohibition of the drama performance and to set aside the police order prohibiting the public show of the play which was granted by Magistrate Dube.

Magistrate Dube barred the police from disturbing or interfering in any way with the drama performance.

The magistrate sanctioned Jahunda Community Theatre to proceed with the drama performance as scheduled so as to promote the organisation’s right to freedom of association and assembly as set out in Section 21 of the Constitution and the right to freedom of expression as guaranteed in Section 20 of the Constitution.

In his application, Jamela argued the actions of the police in prohibiting the play infringes on the right to freedom of assembly and association enshrined in Section 21 of the Constitution of Zimbabwe as well as the freedom of expression enshrined in Section 20 of the Constitution which cannot be arbitrarily or unreasonably taken away by any person.

In addition, the theatre group is exempted from notifying the police about its activities as it is not a political grouping, thus the notice which Jahunda Community Theatre served on the police was just on courteous grounds rather than seeking authorisation.

The human rights lawyer argued that the Bhekumusa Moyo-led Jahunda Community Theatre had a democratic right to freely perform theatrical arts without being hindered by anyone including the police since they were not committing any offence.

Nine Rooftop artists charged with criminal nuisance


On March 22, 2011, Mutare magistrate Nixon Mangoti acquitted nine Rooftop artists and their driver, who were charged with criminal nuisance after staging a theatre performance entitled Rituals in Chimanimani, Manicaland Province. Magistrate Mangoti acquitted the nine Rooftop artists and their driver at the close of the State case after the artists’ lawyers Blessing Nyamaropa of Zimbabwe Lawyers for Human Rights (ZLHR) and Cosmas Chibaya of Chibaya and Associates applied for discharge at the close of the State case.

State prosecutor Fletcher Karombe had led evidence from three witnesses since trial commenced on 17 March 2011.

In acquitting the Rooftop artists, magistrate Mangoti ruled that the State had not led any evidence that a reasonable court could convict the artists.

The Rooftop artistes namely, Sylvanos Mudzvova, Chipo Bizure, Joice Mpofu, Zenzo Nyathi, Mandla Moyo, Rutendo Chigudu, Amina Lloyd Ayamu, Joshua Mwase, Norman Kamema and the driver Shingirai Muto were arrested on January 5, 2011 at Nhedziwa Growth Point in Chimanimani, Manicaland Province and were detained at Cashel Valley Police Station.

They were charged with contravening Section 46 of the Criminal Law (Codification and Reform) Act as read with Section 2 (a) (ii) of the third schedule to Section 46 of the said Act that is criminal nuisance.

The police accused them of unlawfully holding a public performance, where they performed a drama reminiscent of the political disturbances of June 2008 that incited the affected members of the public to revive their differences.

Last year Bulawayo Central Police Station banned the public performance of Rituals. A magistrate quashed the police ban on the national healing play after ZLHR’s intervention.

“In a letter dated January 31, 2011 and addressed to the National Arts Council of Zimbabwe (Nacz), a board representing artists, which had notified the police on behalf of Rooftop Promotions, the police stated that they could not sanction the performance of the play because the government was already attending to issues of national healing through the Organ for National Healing, Reconciliation and Integration,” reports ZLHR.

The drama performance set for Bulawayo Polytechnic College was to proceed as the police were ordered not to interfere or disturb its proceedings.

Rooftop Promotions was given the green light to proceed with staging the play at Bulawayo Polytechnic College as scheduled by Magistrate Dube in the name of promoting freedom of association and assembly.
 
Gukurahundi pictures case goes to Supreme Court


In March visual artist Owen Maseko was arrested for staging an exhibition in Bulawayo depicting the 1980’s Matabeleland massacres carried out by troops loyal to President Robert Mugabe’s previous government.

The exhibition, which showcased paintings that explored the torture and massacres that characterised the civil unrest known as Gukurahundi, was forcibly 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”.

When Maseko went on trial facing charges of unlawfully exhibiting Gukurahundi artistic images, 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 while making a ruling had said it was a fact that Gukurahundi military killings of over 20 000 civilians in Matabeleland and Midlands did happen in the early 80s.

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.

“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,” she said.

Maseko’s lawyers stated the artist’s fundamental rights, provided for in the Constitution of Zimbabwe and other International Human Rights Instruments to which Zimbabwe is a State party, were being violated.

The Supreme Court was called to 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.

The Constitutional court had to 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.

No Voice No Choice police ban quashed Masvingo magistrate Jabulani Zinyati on August 2 this year quashed a police ban on a national healing theatre play aimed at exhorting peace and reconciliation after years of conflict in Zimbabwe.

The interdict came after Collin Maboke, a member lawyer of ZLHR instituted urgent proceedings in the form of an ex-parte application challenging the police ban of the play.

The police through Chief Superintendent Nyapfuri, the officer commanding Zimbabwe Republic Police Masvingo Central district had banned the public performance of No Voice No Choice, a production by two community theatre groups, Edzai Isu Theatre Arts Project and Zvido Zvevanhu Arts Ensemble.

The play, which was nominated for the Outstanding Theatrical Production at the National Arts Merits Award held in February 2012, was scheduled to be staged in Masvingo Province during the Youth Cultural Arts Festival.

In a letter dated August 1 and addressed to Tafadzwa Muzondo, the producer of the play, Nyapfuri stated the police could not sanction the performance of the play “due to security reasons” which he did not disclose.

But Maboke filed an ex-parte application seeking to declare as unlawful the prohibition of the theatre performance and to set aside the police order prohibiting the public show of the play.

Magistrate Zinyati granted the application which also sanctioned the two theatre groups to proceed with the staging of the drama performance as scheduled.

The police were interdicted from disturbing or interfering in any way with the drama performance and ordered to allow the play to run uninterrupted.

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