OPPOSITION Harare West legislator Joanah Mamombe (MDC Alliance), who was remanded in custody by a Harare magistrate who wants her examined for mental illness by two government doctors, has approached the High Court to challenge the incarceration.
Mamombe, who was at the time admitted at a Borrowdale
medical facility after suffering from an anxiety problem which is associated
with mental depression, was forcibly removed from her hospital bed by the
police after she was slapped with a warrant of arrest for absconding trial.
Magistrate Bianca Makwande committed Mamombe to prison for
two weeks after an unsuccessful challenge by Mamombe’s lawyers, Alec
Muchadehama and Jeremiah Bhamu.
Makwande ruled that facts before the court clearly showed
Mamombe was mentally disturbed, but could not conclude that she was sick
because she was not an expert.
Mamombe filed two applications for the review of Makwande’s
ruling and an application for an order for her release from custody.
The legislator cited Prosecutor-General Kumbirai Hodzi,
Commissioner General of Prison Services, Superintendent Harare Remand Prison
and Officer-in-Charge Chikurubi Remand Prison.
In her urgent chamber application, Mamombe submits that she wants the decision by Makwande to be set aside because the magistrate assumed jurisdiction to determine an application in terms of the Mental Health Act.
“Makwande could not have assumed jurisdiction with respect
to an issue that had become moot,” Mamombe’s lawyers submitted.
The magistrate’s decision was grossly irregular in that it was not based on established evidence, but speculation and conjecture with respect to the competence, credibility, neutrality and qualifications of Mamombe’s medical practitioner, they said.
“Makwande’s decision was grossly irregular in that it
amounts to a capricious and injudicious exercise of discretion which has the
effect of revoking Mamombe’s bail through the back door,” they submit.
Muchadehama and Bhamu submitted that Makwande’s decision
was tantamount to usurping the functions of the legislature.
“Mamombe could still have been examined by any medical
practitioner as an outpatient as she was evidently not a danger to society.
Makwande therefore acted out of capricious malice and ordered Mamombe’s
committal to prison where effective alternatives existed which did not have the
drastic effect of stripping her of liberty,” they submitted.
“Ordinarily, Mamombe would not have asked this court to
consider the imposition of costs against Makwande and Prosecutor-General, but
this application was not necessary had they not exhibited blatant malice in the
manner they handled Mamombe’s matter, I pray for an order of costs against
them, jointly and severally.”
Mamombe is seeking relief that the High Court sets aside
Makwande’s ruling, an order declaring Mamombe’s detention unlawful and of no
force or effect and an order for costs against the respondents.
The State was given seven days to respond, but is yet to.
Newsday
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