Vice President Constantino Chiwenga was sternly reprimanded by the High Court for abusing his power and using the military to settle his domestic affairs. In a damning ruling, Harare High Court judge Justice Christopher Dube Banda said that what had happened to Chiwenga’s estranged wife Marry Mubaiwa Chiwenga was frightening and went against the tenets of the rule of law.
Justice Dube-Banda made the ruling in an urgent application which Marry filed following her release from prison after she was barred from accessing her matrimonial home, her possessions and her three minor children. Marry alleged that she had been barred by soldiers who were stationed at her home by the Vice President.
Justice Dube-Banda found Marry’s application credible and ordered Vice President Constantino Chiwenga to return the children to the custody of their mother within 24 hours. He also ordered Chiwenga to allow Marry access to the family home and other properties.
The judge was not impressed by Chwiwenga’s conduct and made his feelings known saying that Chiwenga has no power to bar Marry from the couple’s home. Part of the ruling reads
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.
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.
…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.
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.
Speaking out against the use of members of the military in domestic disputes, Justice Dube-Banda added,
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.
Speaking on the custody of the children, the judge said that it was deplorable for Chiwenga to prevent Marry from seeing her children. He stressed that under the law, Marry has sole custody of the minor children.
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.
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.
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.
Vice President Constantino Chiwenga did not take the High Court ruling well and immediately instructed his lawyers to appeal the ruling at the Supreme Court. The appeal was filed within hours of Justice Banda-Dube’s ruling.