Mamombe challenges imprisonment

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.