Judge tells Chiwenga “no-one is above the law”…. defiant VP appeals

By Lenah Nhewa

Zimbabwe’s Vice President Constantino Chiwenga appealed on Friday against a High Court ruling, which granted his estranged wife Marry Mubaiwa access to the couple’s three minor children and their lavish matrimonial home situated on a hill in Harare’s upmarket Borrowdale Brooke.

Marry approached the courts after soldiers were allegedly deployed to bar her from accessing their family home. In granting her access, Justice Dube Banda accused Chiwenga of tarnishing the image of the country by recruiting the army to fight his matrimonial disputes.

“It is a fundamental rule of our law that no-one is above the law and that no-one is allowed to resort to self-help without recourse to the remedies provided in the law,” said the judge.

“I note from the founding affidavit that the applicant resides at number 614 Nick Price Drive, Borrowdale Brooke, Harare, prior to her removal from the premises when she was arrested by members of the Zimbabwe Anti-Corruption Commission (Zacc). The respondent (Chiwenga) had not resided at the said premises for a period of more than four months prior to the arrest.

“The respondent may not wish to reside with the applicant but in the absence of a court order, he has no right to bar her from entering or residing at the erstwhile matrimonial home.”

“The conduct of the respondent has the potential to render the applicant destitute, frustrate her compliance with bail conditions and place her in serious jeopardy and bring the standing of the status of the rule of law in Zimbabwe into serious disrepute,” the judge went on.

“It must not be forgotten that the respondent is no ordinary citizen and his conduct is particularly objectionable as he has taken an oath to uphold the laws of Zimbabwe.”

“Whatever the reasons are, I do not agree that a spouse may be removed from the matrimonial home outside the parameters of the law. To my mind, she may move out of such a home either by her consent or after the conclusion of due process,” Justice Banda said.

“She cannot be refused entrance to the matrimonial home by the members of the military. In fact, it is unacceptable and anathema to the constitutional values of this jurisdiction that the military may be used to settle a matrimonial dispute.

“This is frightening and undermines the values inherent in our constitution which are the rule of law, supremacy of the Constitution, gender equality, fundamental human rights and freedoms and good governance.

“What happened to the applicant must be cause of fear and concern to all law-abiding citizens wherever they are and their station in life.”

“I note the particularly distressing issue that the applicant has not been allowed access to her children all of whom are minors. Even if it was contemplated by the respondent that applicant be removed from the matrimonial home, and such conduct was lawful, our laws clearly provide that the children ought to be with her as a matter of law,” said the judge.

“The separation occurred on January 6 when the applicant was refused entry to the matrimonial home, refused access and custody of children, she should have on that day by operation of Section 5 (1) of the Guardianship of Minors Act been allowed to take custody of the children.

“Applicant being the mother of the children, her right to the sole custody of the children cannot be defeated, delayed or postponed,” the judge said while emphasizing that VP Chiwenga could still see the children if he wanted to.

Instructed by Manase and Manase legal practitioners, Advocate Lewis Uriri for Chiwenga argued that “the court aquo erred and misdirected itself on the facts and evidence in holding that the respondent had been despoiled.

“The court aquo erred for the stronger reason in not finding that where an applicant for spoliation order alleges more than unlawful possession and avers to the merits of her possession, the matter goes outside the purview of urgency…and that urgency in these circumstances must be established on the basis of the ordinary rules relating to urgency,”

Regarding the minor children, Chiwenga argued that the court erred and misdirected itself in finding that the respondent had been unlawfully dispossessed.

“The court aquo erred in dealing with the question of the children on the basis of the mandament van spoile in circumstance wherein section 5 (2) of the Guardianship of Minors Act provide for the procedure to be followed where the mother of minor children who is leaving separately from their father alleges unlawful dispossession of the children.”

The judge emphasised that Chiwenga had breached the peace by taking the law into his own hands.

Marry, who is charged with fraud, externalisation of foreign currency and money laundering, was recently released from Remand Prison on bail after she allegedly attempted to kill Chiwenga who was battling for life at a South African hospital last July.

When Marry was granted bail, the judge seemed to water the seriousness of the charges laid against her and suggested the offences did not warrant a custodial sentence.

This is despite the fact that the granting of bail was delayed. The former Zimbabwe Defence Forces’ estranged wife spent the whole of Christmas inside prison despite spirited appeals by her lawyers.

Marry’s arrest was also mired in controversy as the Zimbabwe Anti-Corruption Commission (ZAAC) was roundly criticised for seemingly prosecuting Marry to settle Chiwenga’s personal scores.

According to critics, ZAAC only went after Marry without inquiring on who allegedly protected her during the times she allegedly externalised foreign currency. She is even reported as having three passports, to which critics say were given to her by virtue of being the Vice President’s wife.

Marry is accused of plotting to kill Chiwenga in a case where she is accused of allegedly searching for Chiwenga’s will to prepare herself for a post-Chiwenga life.

In her defence, Marry said the marriage collapsed because of Chiwenga’s alleged reliance on “heavy doses of drugs”. Paranoia caused by fear of losing the post of Vice President and poor health were also cited as contributing factors.

Marry stated that “… the demise of the customary law union was brought about by plaintiff’s (Chiwenga) acute paranoia brought about by poor health, his being under heavy doses of drugs including un-prescribed opiates, his surrounding himself with persons who want to take advantage of him and his belief that his ascendency to the position of presidency might be in jeopardy.”

This was not before she too denied a counter accusation of drug abuse by Chiwenga. Marry denied being a drug addict and pleaded that;

“the children were under her exclusive care for long periods of time without any adverse consequences on them and it is denied that the children’s best interests would be served by custody being awarded to a sickly absentee parent who is more in hospital than out.”

Furthermore, in a submission that exposes the former Army General, Marry stated that;

“All assets acquired during the subsistence of the marriage were acquired with the full knowledge and participation of the plaintiff, whose name could not be used and who, on advice from the bank, procured his relatives to assist in the acquisition of the assets on the basis that plaintiff’s name could not be used as he was on the sanctions list.”

Marry further pleaded “that all the monies used to acquire assets were availed by the plaintiff from some of his business partners and that the amnesia he has developed is part of the contrived criminal proceedings against her.”

Chiwenga’s appeal is yet to be set down for hearing in the Supreme Court. Nehanda Radio