…Arrives in ambulance to cancel arrest warrants
…Given two-month reprieve
Marry Mubaiwa was on Monday brought to court in an ambulance to cancel two warrants of arrest that had been issued against her after she had defaulted court because of sickness.
Mubaiwa, represented by Beatrice Mtetwa was brought to court in an ambulance and taken into court on a stretcher bed to cancel warrants of arrest that had been earlier issued by magistrate Ngoni Nduna.
H-Metro spoke to legal experts on warrants of arrest and the procedure surrounding the issuance of warrants of arrest.
Farayi Zuva said it was his first time to see and accused person coming to court in an ambulance.
“It’s my first time to see an accused person coming to court in an ambulance. I have never seen this and I think the problem that happened was that Marry isn’t in the custody of the State; she’s on bail so she being on bail, when given a date to appear in court she must appear in court and when warrants were issued.
“She was supposed to appear as she eventually did to have the warrants cancelled by the court.
“The court in certain circumstances especially in cases where a person is hospitalised under guard by prison officers or by the police for example like those robbers that are shot during a shootout with the police they can be remanded in hospital, the court goes to the bedside and does the procedure for remand and they can be remanded while they are in hospital, but these are circumstances when the state is in control of the accused person’s liberty.
“In this particular case, Marry was at her house and although it might be possible, I have never heard of a situation when the court goes to someone’s house and then carries out remand proceedings at someone’s house.
“I believe the reason that the lawyer insisted that she be brought to court was that she’s on bail and isn’t within the State’s custody so she had to appear and explain herself,” he said.
When asked whether a medical affidavit wouldn’t have been enough considering the circumstances that she was reportedly bedridden, Zuva said, “If the medical affidavit had been furnished before the warrant of arrest had been applied for, I think it would have sufficed, I don’t know at what stage if at all the team submitted a medical affidavit by the doctor.
“Once the warrants had been issued, the issue of the medical affidavit in my view would not have sufficed, she was obliged to come to court once the warrants had been issued, to seek cancellation and explain her absence in the first place, because once a warrant has been issued, it gives every police officer powers to arrest.
“If she hadn’t appeared eventually she would have been arrested at her house based on that warrant and that would have been unfortunate if she was really bedridden and maybe that’s why her lawyers took the risk to make arrangements for her to be brought to court in an ambulance; they knew she would be arrested even in that bad medical condition, they simply followed the law,” he said.
South-Africa based lawyer Eleanor Mbanga said its general principle that when out on bail, an accused person is supposed to vail themselves to court whenever they are ordered to do so.
“As a general principle, if you’re out on bail, you need to appear in court each time that you have a court appearance and if not, a warrant of arrest will be issued for you to be brought to court.
“However, if you’re unwell and physically unfit to attend court, then your lawyer must produce a medical certificate signed by a doctor without disclosing too much about the health status but enough to prove that they are unwell.
“But an unfit accused person mustn’t be brought physically to court in an ambulance just to prove that they unwell,” she said.
Harare lawyer John Ndomene said whether an accused person is ill, attending a funeral or is going to work, court business takes precedence.
“Court business always takes precedence whether an accused person is ill, attending a funeral or going to work; so when they fail to appear in court, a warrant of arrest will be issued.
“However Marry could have come to court with the medical documents proving that she was not in wilful default, there was no need to bring her to court in an ambulance because it was dramatic and degrading for people to see her in that state,” he said,
Another lawyer who spoke on conditions of anonymity said,
“It’s technically possible for an accused person to be remanded in custody according to the law when satisfied by the reasons tendered by the lawyers, but in Zimbabwe I haven’t seen a court that’s bold enough to remand an accused person in absentia, with Marry there are political connotations to the matter.
“The courts are slow to remand an accused person at the mere say so of a legal practitioner even though medical proof has been made available, they now have what they call an ‘administrative’ warrant of arrest however in the law it doesn’t exist, they call it that because they acknowledge that they have been told that an accused person is indisposed,” he said.
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