Mental disorder (Zimbabwe)

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If, as a result of his interviews with his client, the defence lawyer considers that the client is not mentally fit to stand trial, he or she should liaise with the prosecutor in the case so that the mental condition of the accused can be brought to the attention of a magistrate and an order can be made for a psychiatric investigation into the mental competence of the accuse to take place. Where the client is mentally unfit to stand trial he will be dealt with under s 27 of the Mental Health Act.

The defence lawyer must also consider whether the client was suffering from a mental disorder at the time that he or she did the act constituting the charge such that in terms of s 29 of the Mental Health the judicial officer will return a special verdict to the effect that the accused person is not guilty because of insanity. The mental disorder does not have to be permanent disorder. The crucial question is whether the disorder existed at the time the "crime" was committed. The Mental Health Act a special verdict will be returned if the accused was at the time the act was done "mental disordered or intellectually handicapped so as not to be responsible for the act. It defines "mentally disordered or intellectually handicapped" as meaning that person suffering from mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind. "Psychopathic disorder" is defined as a persistent disorder or disability of the mind, whether or not subnormality of intelligence is present, which has existed or is believed to have existed in the patient since before 18 years old; and results in abnormally aggressive or seriously irresponsible conduct on the part of the patient. Various cases have interpreted these provisions. These cases have decided that under these provisions:

  • the disorder or mental disorder or disability can be temporary - if it existed at the time of the act was committed it does not matter that X no longer suffered from that mental condition subsequently and at the time of the trial;
  • the cause of the mental disorder or disability is immaterial - organic (e.g. brain tumour); physical (e.g. blow to head); functional (e.g. affecting functions with no discernible organic cause)

See Senekal 1969 (2) RLR 498 (A); Mawonani 1970 (1) RLR 41 (A); Ncube 1977 (2) RLR 304 (R)

Where the crime is apparently motiveless, this should alert the defence lawyer to the possibility that the client may have been suffering from some form of mental instability when he committed the crime. In the case of murder odd, inexplicable and bizarre behaviour before, during or after the killing or from the way in which the instructs his lawyer or the way in which he behaves must not be ignored, as it may provide the basis for establishing that X it entitled to the special verdict or at least there was diminished responsibility to an extent that constitutes extenuation. The defence lawyer has a duty to pursue this matter and to ask for a psychiatric examination where appropriate. The psychiatrist who carries out this investigation must be asked not only to give an opinion as to whether X was mentally irresponsible to an extent that a special verdict is justified, but also if X was suffering was suffering from diminished responsibility. See Taanorwa 1987 (1) ZLR 62 (S) and Mukombe 1991 (1) ZLR 138 (S). Where the conduct of X at the time of the act was strange, the defence counsel would be well-advised to interview members of X's family, his friends, co-workers and former employers to ascertain whether he had any history of strange behaviour.

If the client was suffering from a temporary mental disorder at the time of the act but is now mentally stable, he or she may be reluctant to allow the lawyer to plead the special verdict on his or her behalf. The client may fear that if this route is taken he or she may end up being incarcerated in a mental asylum for the criminally insane. The lawyer should explain to the client that if this defence succeeds and the court also decides that the accused is no longer suffering from any mental disorder, it can simply order that he or she be released from custody. For instance, in the case of Machona HH-14-02 After a series of personal misfortunes, the appellant attempted to commit suicide by cutting his own throat. When taken to a doctor for treatment, he attacked the doctor, severely and permanently injuring him. The medical evidence was that the appellant, who was charged with attempted murder, had suffered a brief "reactive psychosis" or "psychotic episode" which was unlikely to recur. The court held that the appellant was mentally disordered at the time, and not merely suffering from diminished responsibility, and should have been found not guilty by reason of insanity. Because he was no longer mentally disordered, he was entitled to be released from custody. However, with a serious offence like murder, if the psychiatric evidence indicates that the accused is or may be still mentally disordered, the court may order that he or she be returned to prison for transfer to a mental institution for treatment or for further examination to decide his or her mental state. On the other hand, with petty offences the court does not have to order that the accused be sent to a mental institution. Petty offences are those in respect of which the accused would not have been sentenced to imprisonment without the option of a fine or to a fine exceeding level three. In respect of petty offences if the court finds that the accused was mentally disordered at time of alleged crime but that he is no longer mentally disordered at the time of the trial, it may make any of these orders:

  • that he or she submit himself to examination and/or treatment at a specified institution;
  • That his or her spouse, guardian or close relative apply for a civil detention order.

The court may then make an order to secure his or her release from custody or for purpose of such examination or treatment: s 29(2) of Mental Health Act.

One point that defence counsel must be aware of is that even if the defence does not raise the defence of mental disorder, if the court suspects that X was suffering from a mental disorder at the time of the crime, the court itself can order that X be subjected to a psychiatric examination to determine whether the special verdict is applicable.

See Zimbabwe Criminal Defense Manual