1. Introduction
The interface between mental health and criminal justice in Zimbabwe is principally governed by the Mental Health Act [Chapter 15:12], which establishes a structured framework for the identification, treatment and disposition of mentally disordered persons who come into contact with the criminal justice system. Mental health and psychiatry in Zimbabwe are institutionally embedded within the prison health care system, with statutory procedures tailored to address mental disorder at various stages of the criminal process.
This article examines the statutory scheme under Part III of the Mental Health Act, focusing on Sections 26 to 30, and critically analyses the procedural and evidentiary requirements applicable where an accused person alleges mental disorder at the time of the commission of an offence, particularly under Sections 28 and 29. The discussion is grounded in judicial authority, including Machona v The State HH-14-02 and S v Fungayi Chiwaya HH 821/22.
Part III of the Mental Health Act (Sections 26–35) regulates the treatment and management of mentally disordered persons within the criminal justice system. The Act recognises that mental disorder may arise or be identified at different procedural stages and provides distinct mechanisms accordingly.
- Section 26 applies where a person is found to be mentally ill while in remand prison.
- Section 27 governs persons who become mentally disordered while under detention.
- Section 28 applies where an accused person appears to be mentally ill during trial.
- Section 29 addresses situations where the accused is alleged to have been mentally ill at the time of committing the offence.
- Section 30regulates cases where a convicted prisoner becomes mentally disordered after conviction.
In all such cases, a magistrate, judge, or other judicial officer is empowered to order a medical examination of the accused. Where necessary, the accused may be transferred to a special institution gazetted in terms of Section 107 of the Act for care and treatment.
2. Section 28: Mental Disorder Manifesting During Trial
Section 28 applies where, during the course of proceedings, an accused person appears to be mentally disordered and incapable of understanding the proceedings or making a proper defence. In such circumstances, the court is required to conduct an inquiry into the accused’s mental state. The inquiry is inquisitorial in nature and is aimed at satisfying the court whether the accused is fit to stand trial. Where the court is satisfied that the accused is mentally disordered, proceedings may be postponed, stayed, or discontinued, and the accused may be detained for examination or treatment in a designated mental institution.
3. Section 29: Mental Disorder at the Time of the Offence
Section 29 is concerned with cases where the accused alleges that he or she was mentally disordered at the time of the commission of the offence. This provision applies where the accused has sufficiently recovered and is fit to stand trial, but raises mental disorder as a substantive defence.
3.1 Petty Offences
Where the offence is one that would not ordinarily attract imprisonment without the option of a fine, or a fine exceeding level three, the court has a range of discretionary options. In such cases, the magistrate or judge may:
- Order the accused to submit himself or herself for examination and/or treatment at a specified institution;
- Direct the accused’s spouse, guardian, or close relative to apply for a civil detention order; or
- If satisfied that the accused is no longer mentally disordered or intellectually handicapped, order the accused’s discharge and release from custody.
These provisions recognise proportionality and seek to avoid unnecessary institutionalisation in cases involving minor offences.
3.2 Serious Offences
In cases involving serious offences, such as murder, the court must exercise heightened caution. Where psychiatric evidence suggests that the accused is or may still be mentally disordered, the court may order that the accused be returned to prison for transfer to a mental institution for treatment or further examination before any release is contemplated.
4. Evidentiary Burden and Trial Procedure under Section 29(2)
A critical distinction between Sections 28 and 29 lies in the procedural approach and evidentiary threshold. Under Section 28, the court initiates an inquiry to satisfy itself as to the accused’s mental condition. Under Section 29(2), however, the court must be satisfied on the basis of evidence adduced at trial, including medical evidence, that the accused was mentally disordered at the time of the offence.
This necessarily entails a trial process. Evidence may be presented by affidavit, medical reports, statements, or oral testimony. The State cannot merely concede mental illness without evidentiary substantiation. Both the prosecution and the defence must place material before the court capable of proving or disproving the accused’s mental condition at the material time.
As held in S v Fungayi Chiwaya HH 821/22, the accused bears the burden of proving, on a balance of probabilities, that he or she was mentally ill at the relevant time. The trial proceeds along ordinary criminal lines, with the State leading evidence first, followed by the defence, whose case must include expert medical testimony addressing the accused’s mental state.
5. Judicial Authority: Machona v The State
In Machona HH-14-02, the appellant, after suffering a series of personal misfortunes, attempted suicide and subsequently attacked a doctor while in a psychotic episode. Medical evidence established that the appellant suffered from a brief reactive psychosis that was unlikely to recur. The court held that the appellant was mentally disordered at the time of the offence and should have been found not guilty by reason of insanity. Importantly, because the appellant was no longer mentally disordered at the time of trial, the court ordered his release from custody. This case underscores that a successful insanity defence does not automatically result in detention in a mental institution; the decisive factor is the accused’s current mental condition and risk profile.
6. Protective Measures and Public Safety Considerations
Where the State acknowledges that the accused was mentally disordered at the relevant time but nevertheless seeks prosecution, this is often motivated by the need to secure protective measures attendant upon an acquittal under Section 29(2). Such acquittals require the court to impose safeguards aimed at minimising the risk of reoffending. Even in such cases, ordinary trial procedures must be followed, though proceedings may be curtailed through mechanisms such as formal admissions under Section 314 of the Criminal Procedure and Evidence Act, particularly where evidence is largely uncontested.
7. The Importance of Current Medical Evidence
The absence of a recent medical report detailing the accused’s recovery and readiness for reintegration into society significantly hampers the court’s ability to make informed determinations. Without such evidence, the court cannot guarantee that the accused will not relapse. In such circumstances, the court is compelled to prioritise public safety and the accused’s own welfare.
8. Appropriate Disposition under Section 29(2)(a)
Given the totality of the evidence and the uncertainty surrounding the accused’s mental stability, the appropriate course of action is to return the accused to remand prison and arrange for transfer to a specialised psychiatric facility, such as the Chikurubi Psychiatric Unit, for examination and possible treatment.
Accordingly, the court may order that:
- The accused be returned to Harare Remand Prison;
- The accused be transferred to Chikurubi Psychiatric Unit for examination and/or treatment in terms of Section 29(2)(a) of the Mental Health Act; and
- The accused be released only in accordance with the provisions of the Mental Health Act [Chapter 15:12], upon confirmation by medical experts that he or she no longer poses a danger to self or society.
9. Conclusion
The Mental Health Act provides a nuanced and graduated framework for dealing with mentally disordered accused persons. Sections 28 and 29 serve distinct but complementary purposes, balancing the rights of the accused with the interests of justice and public safety. Courts must be guided by credible medical evidence, adherence to due process, and a principled assessment of risk when determining the appropriate disposition of such cases.
18/02/26