Newsday reports that High Court judges Justices Nyaradzo
Priscilla Munangati-Manongwa and Siyabona Musithu said while the law sought to
protect the mentally ill, great caution should be exercised not to dismiss
their sexuality without adequate medical evidence.
Mtindi Zidyengi had been convicted by a lower court for
raping a 33-year-old mentally-ill woman. Zidyengi (39), who was unrepresented,
pleaded guilty to the charge of rape. The matter was, however, referred to the
High Court for review in terms of section 57 of the Magistrates Court Act.
“The notion that persons with mental conditions cannot
enjoy sex in their own right needs to be dispelled where there is no evidence
that they are mentally incompetent to consent and appreciate the nature of the
act,” said the judges.
Justice Munangati-Manongwa said the alleged victim was a
good example of how a certain degree of protectionism can suffocate and impede
the enjoyment of life by the mentally ill.
The court heard that on one instance, the woman’s mother
saw them having sexual intercourse, but did not report the matter. The mother
reportedly witnessed another sexual encounter and got concerned, but did
nothing.
The court heard that the woman started refusing her
medication, indicating that she was pregnant and did not want to endanger the
child. She reportedly reported her mother to the police for forcing her to take
medication.
The mother was summoned and she revealed the sexual
encounters, leading to Zidyengi’s arrest and conviction. The lower court ruled
that Zidyengi took advantage of the woman.
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