Maseko was arrested in March 2010 after he exhibited paintings at the National Art Gallery in Bulawayo depicting the Gukurahundi massacres in Matabeleland and the Midlands provinces during which about 20 000 people were murdered.
He faced charges of undermining the authority of, or insulting the President and causing offence to persons of a particular race or religion.
The case was referred to the Constitutional Court following an application by the Zimbabwe Lawyers for Human Rights to the effect that criminalising creative art was an infringement on freedom of expression.
The application was granted by Bulawayo Magistrate, Ntombizodwa Mazhandu.
Appearing for the State today, Chris Mutangadura, argued that any conduct which is likely to compromise public safety should be criminalised.
“We feel that it is not proper for an individual to publish certain things that can cause harm to the people only to hide behind freedom of expression,” said Mutangadura.
However, Chief Justice, Godfrey Chidyausiku, said the submissions by the State were weak to incriminate Maseko to which Mutangadura conceded.
Said Chidyausiku: “Your facts do not disclose an offence in respect of the charges and once we have those concessions, there is no need to hear the other side. Obviously they would like to be heard but we have no business hearing them.”
Judgement in the case was reserved.
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