Marry Chiwenga challenges malicious jailing. Mubaiwa wants the decision of 16 November that she be detained for 10 days for purposes of the said examination under section 28 of the Mental Health Act to be set aside.
Marry Mubaiwa, Vice-President Constantino Chiwenga’s estranged wife, has filed an urgent chamber application at the High Court seeking a review of a judgement by Harare magistrate Lazini Ncube to have her jailed while awaiting mental examination by state doctors.
In the other urgent application, Mubaiwa is requesting an urgent hearing of her appeal stating that any further delay would be detrimental to her deteriorating health. Cited as respondents is the magistrate and the state.
Ncube on Tuesday recommended that Mubaiwa be jailed, issuing a 10-day ultimatum for her to be examined. This was after three state doctors gave different testimonies regarding their findings on her health. Mubaiwa feels it was therefore unfair for the magistrate to order another medical examination, considering that she already has been seen by three state doctors who did not rule out that she is indeed very ill.
She also contends that it was wrong to be detained under section 28 of the Mental Health Act because her condition does not fall under that category because she has not shown any signs which make her mental health questionable.
“Even if there was need for any further exam by more doctors, which I strongly dispute, there would be no need for me to be in custody for such examination to take place,” she said in her founding affidavit.
“My incarceration is therefore clearly malicious and unlawful, designed only to inflict pain on me, as it is based on a deliberate and calculated misinterpretation of the provisions of Section 28 of the Mental Health Act,” she told the High Court.
Mubaiwa said the magistrate and the state want to force her to go on trial when her health would not allow her full participation in the proceedings. During the hearing of her application for postponement, a specialist physician from Parirenyatwa, Dr Percy Simukayi Machawira, said Mubaiwa was at that time taking over six types of medication including pain relief, sedatives and detoxing tablets.
He could, however, not comment on her mental fitness, stating that would require psychiatrists. Two other doctors on Monday also gave their testimonies. The medical professionals, physician Charles Nyamukachi and psychiatrist Fungisai Makombe Mazhandu, gave their different findings.
Nyamukachi told court that he conducted a physical examination on Mubaiwa and concluded that she was fit to stand trial because she was alert to what he was asking her for close to an hour. However, psychiatrist Makombe-Mazhandu testified that Mubaiwa was not fit for trial, saying she was depressed.
“Mubaiwa is suffering from depression that is my finding. She is not able to stand trial. At the time when l saw her she had difficulty in concentrating and she failed to fully follow what l was asking her,” Makombe-Mazhandu said.
“Mubaiwa has a mental disorder she is not currently able to stand trial. I am familiar with the prescription she is taking. Some of the drugs can control how someone thinks. Stop pain which she is taking can affect someone alertness,” she said.
She further said the depression she is facing could have been as a result of separating with her children for long and also of prolonged illness. The doctor recommended that Mubaiwa be reunited with her children to lessen her depression. Meanwhile, in the certificate of urgency, Mubaiwa’s lawyers said the matter was very urgent and hearing cannot be delayed.
“The applicant seeks directions from this honourable court to have the application for review set down and determined on an urgent basis on the grounds that, if it is not, it will result in irreparable harm in that the applicant’s continued incarceration in prison, in terms of a grossly irregular order, is an egregious and ongoing violation of her right to liberty,” the urgent chamber application papers read.
“The applican’s continued incarceration in prison will likely exacerbate her already serious medical condition as the prison conditions are worsening her depression and anxiety. This may have irreparable consequences for her health. If this court does not give directions having the review set down on an urgent basis, the violations will have already occurred by the time the application for review is ultimately set down. Therefore, the applicant seeks an order having the application set down on an urgent basis.”
Mubaiwa is facing a charge of attempting to kill Chiwenga when he was admitted to a South African hospital. She is also accused of forging Chiwenga”s signatures in a bid to formalise their marriage. Mubaiwa is also charged with money laundering and assault. Her assault and fraud trial was due to commence early this month, but failed after she told court that she is unfit to be prosecuted.
She is battling lymphoedema, a condition that has left her lower limbs deformed. She is also going through divorce with Chiwenga, with progress regarding the trial having stalled due to her poor health. Her pressing prayer is to be freed, pending hearing of her matters.
“Failure to have the application for review set down on an urgent basis would cause me great prejudice which would be irreparable in that, if the decision is not set aside urgently, I will remain languishing in prison for 10 days in violation of my right to liberty and in conditions that are exacerbating my already serious health condition.
“The damage to my health is likely to be irreparable. I am already suffering from major depressive disorder with comorbid anxiety disorder and my being committed to prison is only making my depression and anxiety worse as the conditions in prison are inhumane and I am being unjustly denied my right to liberty.”
Mubaiwa was arrested on 14 December 2019. She has not known peace since then as she has been in and out of the courts and lost custody of her minor children after the court ruled she was mentally unstable. The urgent application is yet to be set down for hearing.
Source – Bulawayo24
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