Just as Human Rights Watch issued its horrific report on the shackling of people with mental illness in many countries around the world, so an equally horrific case has emerged in Namibia. The report and the case show that there is a great deal still to be done to sensitise ordinary members of communities round the world – and, sadly, this includes magistrates, whom one might expect to know better – about how to respond to mental illness and what the law and the constitution require in such cases. Judges of Namibia’s high court recently picked up on review that there had been a problem with the trial of a woman recognised as mentally ill by her community, but by the time the magistrate responded to their questions almost a year down the line, it was too late: though the judges set aside her conviction days before World Mental Health Day, she had already served the sentence in full.
Almost as though by design, the case of S v Frederick landed in my computer on 10 October, World Mental Health Day. It’s a sad story, because of the facts of the case, and the way the matter was handled by the trial court, and it shows that a great deal more needs to be done by way of ensuring awareness of mental health issues among court personnel.
Perhaps the worst aspect of the case is the injustice caused by the inexplicable delays of the magistrate. As required, the judgment and record were sent to the high court for two judges to review the case. They found the trial ‘tainted by irregularities of a serious nature’ and set aside conviction and sentence. But by then the woman accused in the case had served the full sentence.
In other words, the magistrate twice failed the woman. First by not acknowledging and getting help for her suspected mental condition. Second, by causing such a long delay that the woman had no benefit from the high court finding that the case had to be set aside.
The accused, Brumilda Frederick, was tried for assault with intent to do grievous bodily harm: according to the state she had thrown her baby onto the ground. There was, however, no sign of any beating. She pleaded not guilty but was convicted. The court sentenced her to 18 months in jail of which 10 months was suspended on a variety of conditions.
When the case arrived at the high court for review, the judges directed a number of questions to the magistrate. Why had she not investigated the woman’s mental illness and criminal capacity, the judges wanted to know. There were grounds to do so, for example, evidence under oath that Frederick had suffered from a mental disturbance since childhood.
Instead of answering directly the magistrate ‘shifts the blame to the State for failing to show an interest in a mental enquiry.’ Moreover, said the magistrate, the accused ‘did not offer mental incapacity as a defence.’
The magistrate’s view was that she had not been satisfied that the situation ‘required or justified an inquiry into mental illness of criminal capacity.’
Judges C M Claasen and J C Liebenberg said they disagreed with the magistrate’s assessment of what would have been appropriate in this case. A niece of the accused had given evidence in which she said that Fredericks was ‘mentally disturbed’ and that this was something that the whole community had observed. The niece gave other information about her aunt and the circumstances of her life. For example, on the day that it was alleged the baby had been thrown onto the ground, Fredericks had been evicted from her home. The niece had tried to organise that Fredericks should see a social worker, but the social worker did not come.
She had later received a text message from Fredericks to say that she wanted to kill her child. The niece continued, ‘I even told the social worker to help the accused person … I want her to be helped so that (she) be taken to (a) specialist to assist her with her condition and be diagnosed accordingly.’
Faced with this and other evidence, the magistrate ‘hinted’ to the prosecutor that Fredericks was known by the community to be ‘mentally disturbed.’ But the prosecutor shrugged it off and the trial continued as normal.
Poignant cross-examination involving the niece also illustrated the seriousness of Frederick’s condition. Asked what might lead her aunt to mistreat the child, the niece said, ‘… Maybe the condition she is in, unemployed, homeless, not receiving love.’
But she added, it was not just these things. ‘For me she is not normal since she was a minor.’
In other words, the niece said the offence could be attributed to her aunt’s mental illness. It was a condition she had had since childhood and was something that the whole community knew about.
The prosecutor’s dismissal of this information as ‘rumour’ could not stand. Was an unrepresented accused, suspected of having a mental illness, supposed to bring an application for mental examination herself, the judges demanded.
The evidence should have alerted the magistrate that the trial could not continue as normal, and she should have referred the accused for mental observation. Failure to do so was a serious misdirection and made the trial a nullity, the judges ruled.
The high court found other problems with the way the trial had been conducted. For example, the competence of a child witness had not been established before he was allowed to give evidence. Proper records had not been kept of the explanations given by the court of the procedural rights explained to the accused. And the sentence itself was improper because for example the conditions of suspension were ‘vague and inappropriate’.
But as the court pointed out, there was also the problem that the magistrate had not treated as urgent the issue of responding to questions by the high court. The accused was sentenced on 1 October 2019 and the high court received the record on 5 November. On 25 November 2019 the reviewing court sent out its queries based on the record. Seven months later, when no reply had yet been received from the magistrate, the high court sent a reminder. Finally, a response was received from the magistrate on 14 September. She claimed that the delay was caused by the record being misplaced in her office and because she travels twice a month to other courts.
The judges found these excuses inadequate saying the fact that the magistrate took almost a year to respond to their queries ‘deprived the accused of the protection that the urgent review mechanism was designed for.’
‘Instead, the review … has become a mere academic exercise.’
The judges urged that processes should be put in place to ensure that magistrates ‘treat the answering of review queries as urgent’ and that cases like this are not repeated. To help make sure this happened, the court ordered that a copy of its judgment should be sent to the Chief Magistrate.
The case highlights some of the difficulties experienced by people suffering from mental illness, in their interaction with the law and the courts. However, a new report by Human Rights Watch, released to coincide with World Mental Health Day, illustrates another shocking problem suffered by people with mental health issues in a number of countries round the world, including in Africa.
This is the horrific practice of shackling people who have mental health problems. The report lists 60 countries in Asia, Africa, Europe, the Middle East and the Americas, where this practice continues.
According to the report, there is a widespread belief that mental health conditions are the result of possession by evil spirits or the devil. It is also believed that such conditions show that the person 'has sinned' or has a lack of faith. 'Therefore, people first consult faith or traditional healers and often only seek medical advice as a last resort.'
'Despite being commonly practiced around the world, shackling remains a largely invisible problem as it occurs behind closed doors, often shrouded in secrecy, and concealed even from neighbours due to shame and stigma.'
Among the countries in Africa where HRW found shackling practised, are Tanzania, Mozambique and Nigeria. Researchers said that in Nigeria the youngest chained was just 10 years old, while the oldest was an 86-year-old man.
The report notes that of the 60 countries where HRW found evidence of shackling, only a handful had laws, policies or strategies in places 'that explicity ban or aim to end shackling of people with mental health conditions.'
'Human Rights Watch calls on the international community andnational governments to ban shackling, adopt measures to reduce stigma against people with psychosocial disabilities and develop adequate, voluntary and community-based mental health services.'