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'Chiwenga using military to settle matrimonial dispute'

by Staff reporter
26 Jan 2020 at 06:11hrs | Views
Vice President Constantino Chiwenga was on Friday forced to swallow a humble pie after a High Court judge told him that he was not above the law.

Justice Dube Banda said what the politician painted the country's rule of law black by recruiting the army to fight his matrimonial disputes, adding that this was unheard-of.

He said this while delivering his ruling on an urgent chamber application filed by Chiwenga's estranged wife, Marry Mubaiwa, seeking access to her three minor children and her matrimonial Borrowdale Brooke place of residence.

The judge upheld Mubaiwa's application saying she has the right to access all her matrimonial property until their divorce case is finalised.

Mubaiwa was arrested on several criminal allegations following her fall-out with Chiwenga before she spent almost a month at remand prison.

Upon her return from prison, she found armed soldiers on guard at her properties as usual but they told her she was no longer wanted at the premises prompting her to approach the court for remedy.

Banda had no kind words for Chiwenga.

"It is a fundamental rule of our law that no-one is above the law and that no-one is allowed to resort to self-help without recourse to the remedies provided in the law," said the judge.

"I note from the founding affidavit that the applicant resides at number 614 Nick Price Drive, Borrowdale Brooke, Harare, prior to her removal from the premises when she was arrested by members of the Zimbabwe Anti-Corruption Commission (Zacc). The respondent (Chiwenga) had not resided at the said premises for a period of more than four months prior to the arrest.

"The respondent may not wish to reside with the applicant but in the absence of a court order, he has no right to bar her from entering or residing at the erstwhile matrimonial home."

The judge ordered Chiwenga to settle costs of the suit saying he was not immune to the law and that his actions were an embarrassment.

"The conduct of the respondent has the potential to render the applicant destitute, frustrate her compliance with bail conditions and place her in serious jeopardy and bring the standing of the status of the rule of law in Zimbabwe into serious disrepute," the judge went on.

"It must not be forgotten that the respondent is no ordinary citizen and his conduct is particularly objectionable as he has taken an oath to uphold the laws of Zimbabwe."

He hammered Chiwenga for using the military against his wife.

"Whatever the reasons are, I do not agree that a spouse may be removed from the matrimonial home outside the parameters of the law. To my mind, she may move out of such a home either by her consent or after the conclusion of due process," Justice Banda said.

"She cannot be refused entrance to the matrimonial home by the members of the military. In fact, it is unacceptable and anathema to the constitutional values of this jurisdiction that the military may be used to settle a matrimonial dispute.

"This is frightening and undermines the values inherent in our constitution which are the rule of law, supremacy of the Constitution, gender equality, fundamental human rights and freedoms and good governance.

"What happened to the applicant must be cause of fear and concern to all law-abiding citizens wherever they are and their station in life."

The judge also ruled that Chiwenga had no right to deny Mubaiwa access to their minor children.

He said she was supposed to leave with her children when Chiwenga kicked her out.

"I note the particularly distressing issue that the applicant has not been allowed access to her children all of whom are minors. Even if it was contemplated by the respondent that applicant be removed from the matrimonial home, and such conduct was lawful, our laws clearly provide that the children ought to be with her as a matter of law," said the judge.

"The separation occurred on January 6 when the applicant was refused entry to the matrimonial home, refused access and custody of children, she should have on that day by operation of Section 5 (1) of the Guardianship of Minors Act been allowed to take custody of the children.

"Applicant being the mother of the children, her right to the sole custody of the children cannot be defeated, delayed or postponed," he said, adding that this does not mean the door is closed for Chiwenga to see the children.

The judge said Mubaiwa had been with the children when the Chiwenga was in South Africa and China for medical purposes.

"Therefore, at this stage I will not delve into the merits of the matter, however will invoke section 5 (1) and restore custody of the children to the applicant," said Banda.

The judge said none of them can access and use the family vehicles to the exclusion of the other without following due process.

"Those are the fruits of matrimony. That is what staying together as husband and wife entails," said Banda, adding he does not care who bought the vehicles.

He also ruled that Marry should continue using Orchid Gardens offices without any limitations.

"I agree. But the security personnel are not guarding the property against a spouse. The guards must keep their lane and respondent, if he does not want applicant to access the property like any other person, he must deploy due process of law (and) not to take the law into his hands. I repeat such conduct is anathema to the rule of law," said the judge.

Source - newzimbabwe