Chronicle EditorMashudu Netsianda, Senior Court Reporter
FOUR psychiatric patients who have been detained at Mlondolozi Mental Health Institution in Bulawayo for the past eight years have taken Health and Child Care Minister, Vice-President Constantino Chiwenga, to court challenging their “unjustified” detention.
The quartet, who claim to have fully recovered and are now eligible for release, wants an order compelling VP Chiwenga, in his capacity as Health and Child Care Minister, to set up a mental health board at the institution to review their condition for possible release.
They argued that their detention for an indefinite period of time is unlawful and a violation of their constitutional rights.
Simanga Sibanda, Decent Ncube, Siphethangani Ndebele and Lousinin Siziba, through their lawyers Moyo and Nyoni Legal Practitioners, filed an application at the Bulawayo High Court citing President Mnangagwa and VP Chiwenga as respondents.
In papers before the court, the four applicants want an order compelling VP Chiwenga to appoint suitable persons to constitute a special board and mental health board for Mlondolozi Mental Health Institution and other mental health institutions in the country in terms of sections 68 (2); 73(1) and 75 (1)(c) of the Mental Health Act.
They also want VP Chiwenga to constitute and appoint the chairperson and deputy chair of the Mental Health Review Tribunal in line with the provisions of Section 75 (1) (a) and (b) of the Mental Health Act.
Soon after the appointment of the chairperson of the tribunal and his or her deputy, the applicants want President Mnangagwa to immediately appoint other members as provided for in Section 75 (1) (c) of the Mental Health Act.
In his founding affidavit, Sibanda who is representing other applicants, said the basis of the application hinged on Section 68 of the Mental Health Act, which provides for the establishment of mental health hospital boards. Section 68 (2) of the Mental Health Act says: “A mental hospital board shall consist of not fewer than five members appointed by the Minister, of whom (a) one shall be a medical practitioner and one (b) one shall be a legal practitioner.”
The law also provides that, where the Minister is unable to find a suitable person qualified as required by paragraph (a) or (b), he shall appoint instead some other person who, in his opinion, has suitable medical or legal experience, as the case may be. Section 68 (3) reads: “The Minister shall designate one member of every mental hospital board to be chairman of the board.”
Sibanda said he was arrested and charged for allegedly raping his uncle’s wife and unlawful entry.
“While on remand, I was examined by two doctors and a psychiatrist and a medical report was produced indicating that I had a mental problem. The report concluded that it was possible that at the time of commission of the offence, I may have been suffering from some form of diminished responsibility.”
Sibanda said he has been detained together with Ncube, Ndebele and Siziba for the past eight years and undergoing care management and treatment at Mlondolozi.
“When I was detained at the institution, I was advised that I would only be eligible for release upon doctors confirming that I have since recovered, my relatives attesting to the requisite affidavits, with the mental health board sitting and recommending to the tribunal that I am eligible for release,” he said.
The board of the institution is the first port of call where one’s case is reviewed for possible release. If satisfied that the patient can be released, it makes the necessary recommendations to the tribunal. When the tribunal sits, it considers a patient’s case and then makes a final decision on whether to release the patient or order further detention.
Sibanda said presently there was no board and tribunal to review their case.
“My application is thus simply to compel the respondents to act as it provided for at law, there is no other institution, individual or body or forum that is empowered at law to consider and review our case for possible release other than the board and a tribunal,” he said.
“If the two organs are not constituted it follows that I and the other three applicants will be detained at this special institution forever and all other patients across the country will suffer the same fate.”
The respondents are yet to respond. — @mashnets
Online Reporter