High Court Reprieve for Marry Mubaiwa

Two High Court judges yesterday released Marry Mubaiwa from custodial remand quashing the order by Harare magistrate Mr Lazini Ncube last week placing her in custody for 10 days while she undergoes mental examination by two Government doctors.

While she has been found to be physically fit to stand trial on several charges, the first being laid under the Marriage Act, the magistrate found that two previous examinations had not gone into her mental state and whether the depression she complains about meant she could not follow the trial proceedings.

So last week, Mr Ncube remanded Mubaiwa into the custody of the head of the Harare Remand Prison for 10 days so two Government doctors could ascertain her mental condition and give a decisive answer to whether she could or could not stand trial.

But on review at the High Court, Justice Pisirayi Kwenda and Justice Benjamin Chikowero allowed the application by Mubaiwa, who was being represented by her lawyer Ms Beatrice Mtetwa.

The State led by Ms Sharon Fero had opposed the application, arguing that the magistrate acted properly in ordering Mubaiwa to undergo mental examination to establish her fitness to stand trial.

Mubaiwa had approached the higher court seeking a review of the trial court proceedings that led to her being remanded in custody.

In her application, Mubaiwa asked the court to quash the order claiming that the trial magistrate committed a gross irregularity in that he failed to make a determination on the application before him and instead making determination based on a section of the Mental Health Act without affording Mubaiwa an opportunity to be heard on the applicability of that section to the matter that was before the trial court.

The lower court was also accused of disregarding the medical evidence that was placed before him and the court orders together with the reports that were prepared in terms of those court orders.

Mubaiwa appeared in court last week on charges of contravening the Marriage Act after she allegedly lied that VP Constantino Chiwenga had consented to marry her in a civil ceremony during the time he was ill and she then made extensive arrangements for the ceremony, even ensuring that the chief magistrate came to their home.

But the trial could not commence after Mubaiwa’s legal counsel told the court that she was not fit for trial.

The court then ordered that she be examined by doctors to ascertain whether she was unwell to comprehend trial proceedings or not.

Three medical practitioners examined her, with two physicians saying Mubaiwa was physically fit to stand trial while a psychiatrist told the court that she was suffering from depression and anxiety, rendering her unfit to stand trial.

The State led by Mr Michael Reza applied that they proceed under Section 26 of the Mental Health Act, which requires that the accused be examined by two Government doctors .

By The Herald.