By Alexios P. Makotose
Joanah Mamombe, a member of the Parliament of Zimbabwe (notwithstanding the illegal recalls which disregard the voters’ constitutional rights to elect representatives of their choice), was arrested by the Zimbabwe Republic Police (ZRP) together with two other ladies, Cecelia Chimbiri and Netsai Marova on 13 May 2020.
Their arrest was confirmed by the national police spokesperson, Paul Nyathi, on the same day of the arrest. The police later retracted their statement after the disappearance from police custody of Mamombe and her other two co-accused. The three ladies re-appeared covered in blood and barely able to walk after being dumped by their abductors in Bindura on 15 May 2020.
They were visibly in pain, crying, and terrified as they narrated their ordeal. The trio claimed to have been abducted from the police cells, severely tortured, sexually violated, made to drink each other’s urine and eat their excrement.
It is mind boggling that people who have undergone such a horrendous ordeal find themselves being charged with the crime of faking abduction or self-abduction. Common sense and logic required that the police give the ladies the support and opportunity to narrate their story so that the perpetrators could be brought to book for such a heinous and unspeakable crime.
It is unbelievably shocking that the police decided to arrest the ladies for faking their abduction. The police actions were a repeat series of the Dr Peter Magombedze scenario. The police were derelict in their duty to detect, investigate and prevent crime according to section 219(1)(a) of the Zimbabwean constitution.
The police hurriedly laid charges upon the ladies of publishing or communicating false statements prejudicial to the state as defined in section 31(a)(ii) of the Criminal Law (Codification and Reform) Act and publishing or communicating false statements prejudicial to the state as defined in section 31(a)(iii) of the Criminal Law (Codification and Reform) Act.
The three ladies were not given enough time to recuperate and were hurriedly arraigned before the courts. They were denied bail and banished to Chikurubi Maximum Security remand prison barely able to walk. The video clips are still available on internet sites showing them aiding and carrying each other to get to the prison van as they could hardly walk due to the injuries sustained at the hands of the abductors.
After being denied bail by the magistrate, they were finally granted bail by the High Court on 27 June 2020 albeit with stringent conditions. Judge David Foroma ruled that Magistrate Bianca Makwande who presided over their case had misdirected herself by not finding the three ladies not suitable candidates for bail. Mamombe and her co-accused religiously obeyed their bail conditions but, unfortunately for Mamombe, her mental health finally succumbed to the horrendous abuse and torture suffered at the hands of her abductors.
She was admitted in hospital and could not attend the pre-trial hearing on 24 September 2020, but her lawyer was in attendance to explain the reasons why Mamombe had failed to appear for the hearing. There was also a medical doctor, registered under the Health Professions Act, to testify to the court that Mamombe was indeed in hospital and could not attend trial.
Mamombe’s failure to attend the remand hearing was the beginning of a new chapter and a new height in the systematic abuse of law through state organs in Zimbabwe. The abuse highlighted the non-respect for human rights in the country.
In this article I will deal with the legal issue regarding the admission to hospital of persons suffering from mental health illness according to the Zimbabwe Mental Health Act Chapter 15:12. I will also discuss the possible reasons why Mamombe is being harshly treated by the state through the courts.
It must be emphasised that the mental health law currently operational in Zimbabwe was designed to facilitate the admission, assessment and treatment of persons suffering from mental illness, specifically those who may not voluntarily attend hospital for treatment of their illness due to lack of insight into their illness or lack of capacity at that particular time to make that decision.
The law also serves to guide in the assessment and prosecution of such persons in the event of committing crimes. The objective of the mental health law is to accord justice to the mental health sufferers, help the persons access treatment and not to deprive them of treatment.
The Mental Health Act guides the law officers on how to deal with accused persons who may be suffering or alleged to be suffering from mental health illness by outlining the process on how they should be handled without prejudice. In the justice arena exists the principle that stresses the positivity of the law. The principle simply states that ‘law is positive’.
The positivity of the law emphasises that parliament enacts laws to protect the rights of the individuals, the governed in resolving disputes and maintenance of order and justice within the society. In other words, the law is not enacted to work against or to disadvantage the citizens, but it should work in the citizens’ favour by upholding their rights.
There are two options available for the admission of persons suffering from a mental health illness;
The first option is that the patient voluntarily presents themselves to the mental health institution for treatment and will be regarded as an informal patient.
The mentally ill person can also be asked by the healthcare officers to attend hospital for treatment and the person complies with the advice. The person can also be brought to hospital by relatives in compliance with what the relatives believe is in their best interest. From a legal point of view, this person may have capacity to consent to treatment and can at any time withdraw the consent and can no longer be forced to accept treatment once consent is withdrawn.
The second option is that of a formal patient who is ordered by the state to be admitted at a mental health institution by invoking a section of the mental health law. The person may lack capacity to make the decision to attend hospital for treatment and the law has to be enforced for their own safety or for the safety of others.
This procedure is implemented for the best interest of the ill person. The process of such an admission is wholly prescribed in the laws regulating mental health in the country. The discharge of such persons from hospital is also regulated by the laws governing mental health treatment, through the prescribed care pathways or through a tribunal hearing.
In Zimbabwe, the admission and discharge of persons suffering from mental health illness is governed by the Mental Health Act (2006). The objective of this piece of legislation is to enable the person suffering from mental illness to get to a suitable place for assessment and treatment if the person had not done so voluntarily.
The law also designates the institutions that can admit patients for assessment and treatment. Regarding the admissions of patients, the law also allows relatives of the ill person to apply for the person’s admission in a place of treatment and this is an indication of collaborative action between the state and society to help the mentally disordered and intellectually handicapped person to access help as defined by the Act.
The case of Mamombe portrays a different picture to the letter and spirit of The Mental Health Act. The desire and collaboration of the state and society to help mentally ill persons access treatment is absent in the Mamombe case. The law was wrongly used for the benefit of the state and not the accused person suffering from a mental health illness.
Upon the indication by the defence lawyer that Mamombe could not attend court due to admission in hospital for the treatment of a mental illness, the state applied for her to be remanded in custody in order to allow government doctors to carry out an assessment on her mental state.
The application by the state, through prosecutor Michael Reza, was said to be in accordance with section 26 of the Mental Health Act. The prosecutor misdirected the court in the sense that section 26 falls under Part III of the Act that deals with the prosecution of mentally handicapped persons in custody. Part III of the MHA is headed ‘Provisions Relating to Mentally Disordered or Intellectually Handicapped Persons in Custody’. The key phrase here is ‘in custody’.
This opening statement or header to part III of the Act covers all sections under this part, viz a viz, section 26 to section 36. Mamombe was not supposed to be subjected to Part III of the MHA because she was not in custody but out of custody. I must emphasise that Mamombe was granted bail by a High Court judgment presided over by Justice Foroma. She was not a convicted prisoner such that her case could fall under section 26 of the MHA as asserted by the prosecution.
The Magistrate could request for reports by two medical doctors whilst Mamombe continued to receive treatment in the institution she was already admitted. The defence lawyer Mr Alec Muchadehama argued precisely well when he reminded the court that by sending Mamombe to remand prison the court was infringing her fundamental right to freedom as granted by section 76 of the Zimbabwe constitution and affirmed by the High Court.
In response to Mr Muchadehama’s submissions, the Magistrate accused the learned lawyer of blowing hot and cold because the defence lawyer had previously indicated that his client had a mental illness and therefore, he could not challenge the prosecution in its application for detention of his client for assessment.
Magistrate Bianca Makwande’s remarks and decision to order Mamombe to go to a remand prison, take us back to the stone age era when people suffering from mental illness were taken to lunatic and asylum camps to be locked up because there was no motivation to treat them but isolate them from society.
Magistrate Makwande failed to realise that the accused before her was suffering from an illness to which she was already in hospital receiving treatment. The magistrate’s action took Mamombe out of a place of rehabilitation and placed her back in the hands of her tormentors.
Mamombe was granted bail by a higher court and therefore the magistrate had no power to go against the decision of a higher court that had granted Mamombe her freedom. The magistrate’s actions could be deliberate, incompetence or ignorance of the mental health law.
Whatever angle one wants to view the actions and remarks of the magistrate, the bottom line is that a citizen was denied her fundamental rights to freedom and to receive treatment by unnecessarily incarcerating her.
The defence counsel was right to challenge the application on the grounds that doing so would be an infringement on his client’s rights. It must be emphasised that Mamombe has not been convicted of the crime that she is alleged to have committed.
The legal principle of justice always considers a person innocent until proven guilty. If Mamombe is innocent and bailed to attend court from home, she is free to seek treatment from anywhere she may wish; hospital, vapositori, n’anga or even from the sea. The fact that the magistrate unlawfully banished her to Chikurubi maximum prison, Mamombe will not be able to exercise her human and constitutional right to seek treatment from an institution of her choice.
The magistrate had the duty according to section 44 of the Constitution of Zimbabwe (2013) to respect, protect, promote and fulfil the rights and freedom of Mamombe. Mamombe’s defence lawyer, Alec Muchadehama, summarised it well when he said that “what it means is that she is now a prisoner. She was on bail but now she can no longer get medical help on her own.”
Mamombe did not need to be in prison so that two appointed doctors could assess her mental state. A person does not need to be in prison in order to be assessed by the government doctors. Section 112 of the Mental Health Act deals with the examination of a patient in connection with prosecution. Section 112 states that ‘the examination shall where possible be held at the institution or other place where the patient is detained. Mamombe was already admitted in an institution lawfully registered and designated under section 46 of the Mental Health Act.
The magistrate simply needed to have Mamombe examined by government doctors in the place where she was already admitted and not to send her to Chikurubi Remand prison. The government officials have the power under the Mental Health Act to visit the patient for assessment without any obstructions because section 105 (1)(b) deals with the issues of obstructions or refusals by institutions to allow the visiting, interviewing and examinations to anyone for the purpose of the Act.
The practice world-wide is that an accused person alleged to be suffering from mental health illness is not ordered to go to prison but is ordered by the courts to go to hospital outside prison so that the assessment can be carried out under the right environment. Mamombe was already in hospital and receiving treatment and the appointed doctors could just have made appointments where she is receiving treatment and assess her.
A similar scenario involving a ruling party member Prisca Mupfumira, whose defence lawyer reported that she was unable to follow court proceedings due to mental health illness, was treated differently. Mupfumira was supposed to be tried for swindling the NSSA pension fund of an amount close to a hundred million dollars. Her trial was just stopped indefinitely, and she was never ordered to go to remand prison for assessment by the state doctors.
It is not known whether Mupfumira’s case will resume. This is evidence of the selective application of the law that the Zimbabwean citizens witness all the time. If one was to compare the crimes allegedly committed by the two women, one would conclude that the state is sympathetic if not empathetic to corruption and looting as compared to abduction and torture of innocent citizens that demand democracy, justice and equality in the country.
Another case for comparison is that of former Health Minister Obadiah Moyo who is facing a serious crime of corruption and abuse of office by corruptly depriving the state of sixty million dollars meant for the funding of covid-19 treatment. The seriousness of his crime means that the government could not buy the equipment and medicine needed to save people’s lives during this devastating covid-19 pandemic.
His actions meant that many people lost their lives as a result of lack of treatment. For the sole reason that Moyo is a member of the ruling party, Zanu PF, he did not even spend a night in cell. He was fully aware of the bail money required for his freedom before he even attended court. He was accompanied to court by his bodyguards and yet he was arrested the previous day.
Moyo’s case is another example of selective application of the law in favour of the ruling party members and government officials. The claim that no one is above the law does not apply to ruling party and government officials in the Zimbabwean justice system. There is, on one hand, a legal process for Zanu PF and government officials, and on another, a different process for non-members of the ruling party and ordinary citizens.
It is unfortunate that the Mamombe’s case has painted a dark patch on the nation’s progress to promoting mental health awareness. There is clear disregard of the law enacted to promote mental health awareness and treatment of people suffering from mental illness. Mental illness is the disorder of the mind.
It is not surprising that after all what Mamombe has gone through, her mental stamina has given in. The other two ladies jointly accused with Mamombe also require psychiatric and psychological interventions because of the horrendous ordeals they have gone through under the hands of their abductors and continued torture by the state through the judicial system.
In other countries the judicial system could have ordered that they receive psychological support before the commencement of their trials that is, if ever they had to be tried for being abducted and tortured. The state could have ordered that the three ladies receive psychological input to help them recover from the traumatic events they were subjected to.
The suggestion that one can fake or feign their own abduction to the extent that the person is physically and mentally tortured is clearly a joke that the state cannot continue to spread without being called to order. Citizens need to have firm trust and confidence with the law enforcing agents.
Law enforcement agents must carry out their constitutional duties without fear or favour. The list of citizens abducted, tortured and killed is going up all the time but surprisingly without a single arrest. It is the same pattern that the abducted are individuals who voice their concerns against the government and the police accuse all of them of faking their abductions.
This is not only an act of incompetence on the part of the police and judicial officers but a clear systematic abuse of the law by the state and state organs in order to punish and crush any dissenting voices that oppose the state.
Alexios P. Makotose, BN (Mental Health), LLB, LLM (Medical Law).