Chiwenga loses mansion and children to Marry Mubaiwa

Vice President Constantino Chiwenga has suffered a crushing blow in one of his many legal battles against estranged wife Marry Mubaiwa Chiwenga. The High Court ruled in favour of Marry and ordered the Vice President to return the couple’s three minor children to his wife. The court also ruled that Chiwenga must allow Marry access to the couple’s sumptuous matrimonial home in Borrowdale Brooke. This comes after Marry filed an urgent application at the High Court after she was barred from the properties by armed soldiers stationed at the properties by Chiwenga following her release from a three-week stay at the female section of the Chikurubi Maximum Prions.

After being aggrieved by Chiwenga’s decision to bar her from the matrimonial home and from seeing her children, Marry filed an urgent application at the High Court seeking to reverse the Vice President’s actions.  After initially postponing judgement,  High Court judge Justice Pisirai Kwenda ruled against the Vice President and called for the upholding of the rule of law.

Below is the ruling by the High Court,

Must return…and Tadisiswa Chiwenga (Born 13 February 2014) to the custody of the applicant within twenty-four hours of this order.

2. The respondent (Vice President Constantino Chiwenga)  is hereby interdicted and restrained from interfering with applicant’s (Marry Mubaiwa Chiwenga)  access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale Brooke, Borrowdale, Harare.

3. The respondent is hereby interdicted and restrained from interfering with applicant’s access to, use and enjoyment of the property known as Orchid Gardens, Domboshawa, Harare.

4. The respondent is hereby interdicted and restrained from interfering with applicant’s access to, use and enjoyment of the motor vehicles, namely, Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).

5. Respondent is interdicted and restrained from denying or refusing applicant access and /or possession of her clothing.

6. The respondent is ordered to pay applicant’s costs of suit.

Justice Kwenda also had a few strong words to say about the rule of law and the abuse of state power.  The judge said,

The rule of law

Applicant’s (Marry Mubaiwa Chiwenga’s) papers are laden with an allegation that respondent, by virtue of his senior public office, is abusing his State power. The complaint is that respondent is using State power only available to him by virtue of his high office, which power is not available to her (applicant).

It is significant to make the point that one of the crucial elements of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (Constitution), is to make a decisive break from the normalisation of abuse of State power that preceded this Constitution. To achieve this goal, the principles of accountability, the rule of law and the supremacy of the Constitution have been constitutionalised.

These values are now foundational to our constitutional democracy. In terms of the rule of law, government and its officials and agents as well as individuals, private persons are accountable under the same law. The rule of law expresses the principle that all people are equal under the law. No one is above the law, and no one is below it. The court exists to ensure that everyone is accountable to the law. The role of courts is to protect the rights and freedoms guaranteed under the Constitution. Where an individual can show that his or her rights have been violated, the courts will provide a remedy.

Everyone, whatever his or her rank, is subject to the law. In the words of Albert Dicey, “with us, every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.” Our constitution demands no less.

In his opposing affidavit respondent makes the point that he is responding to the application like any other citizen and he acknowledges that he is subject to the laws of Zimbabwe. This is exactly how it is and how it should be. Zimbabwe is a young constitutional democracy still finding its way to full compliance with the values and ideals enshrined in the Constitution.

A court can only interpret the law, and apply it to the facts before it and no more. Failure to do so would amount to an abdication of the court’s constitutional obligation.

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