Pubdate: Thu, 14 Jul 2005
Source: Post, The (Zambia)
Copyright: Post Newspapers 2005
Author: Noel Sichalwe, Lusaka
Bookmark: (Cannabis)


DIRECTOR of Public Prosecutions Chalwe Mchenga on Tuesday described 
the 10-year jail term slapped by the High court on self confessed 
cannabis grower and trafficker Sydney Chileshe as too harsh.

Making submissions during the hearing of the appeal of Chileshe in 
the Supreme Court over his 10-year sentence for cultivating and 
trafficking drugs with a street value of K4.5 billion, Mchenga said 
the High Court judge was aware of the mitigating factors when he 
sentenced Chileshe to 10-year and five-year jail sentences that were 
to run concurrently.

But when the court asked him whether the sentences on the two 
separate counts were too much, Mchenga responded that the sentences 
were too harsh.

He then suggested that five years on each count (to run concurrently) 
could have been a fair sentence for the two offences of cannabis 
growing and trafficking. If this were upheld, Chileshe could only 
serve five years.

In his argument during the hearing of the appeal on Tuesday, 
Chileshe, through his lawyer Bonaventure Mutale stated that the judge 
misdirected himself when sentencing him.

Lusaka High Court judge Charles Kajimanga last year jailed Chileshe, 
for 10 years with hard labour for trafficking in 166 grams of 
cannabis and growing about 5,987 kilograms of cannabis on his farm in 
Lusaka's Makeni area, all valued at K4.5 billion.

He was defended by lawyer Kelvin Bwalya and has since appealed to the 
Supreme Court.

Mutale stated that the judge misdirected himself in the law when he 
purported to combine a review, a case stated and an appeal contrary 
to the mandatory provisions of the Criminal Procedure Code.

Mutale argued that there was confusion between the judge, the defence 
and state advocate as to whether the matter was an appeal, a review 
or a case stated, thereby resulting in substantial miscarriage of 
justice being occasioned on his client.

He noted that it was common knowledge that counsel had a duty to 
bring an irregularity to the court at the earliest opportunity.

Mutale stated that Chileshe's previous counsel failed to submit on 
the issue of sentence as he considered it irrelevant.

Mutale contended that the judge misdirected himself by treating the 
matter as a review as he had conceded in his judgment that this was 
overtaken by the Chileshe's application for cases stated.

He noted that the judge meted out the stiff sentence without 
considering the issue of sentence as it was not addressed by the 
previous defence lawyer.

"This in turn resulted is a gross miscarriage of justice, a material 
irregularity which should justify the quashing of the High Court 
proceedings," he stated.

Mutale further contested that the judge erred in law and fact when he 
held that a single uprooted plant of purported marijuana was a herbal 
cannabis sativa within the provision of the Narcotic Drugs and 
Psychotropic substances.

"It is therefore, submitted that the applicant received flawed advice 
from the defence counsel to plead guilty to the charge of trafficking 
as the indictment did not disclose any offence. This was clearly 
fragrantly incompetent advocacy on the counsel's part which resulted 
in gross injustice being meted out to the appellant," he stated.

Mutale further noted that the sentences by the judge were wrong in 
principle as he lamentably failed to credit Chileshe for pleading 
guilty, being a first offender and suffering forfeiture of reality.

He also noted the judge erred in law when he purported to impose a 
sentence greater than that which the trial court could have 
competently imposed.

Judgment has been reserved.

Chileshe has appealed in the Supreme Court against his 10-year 
sentence with hard labour for trafficking and possessing cannabis.

He was jailed for 10 years with hard labour for trafficking and 
cultivating cannabis after pleading guilty to both charges.

This was after the High Court called for Chileshe's record from the 
subordinate court following magistrate Victoria Mushibwe's decision 
to fine Chileshe K5.1 million for the offence. Magistrate Mushibwe's 
decision caused public outrage resulting in the High Court calling 
for the case record.

When passing the judgment, judge Kajimanga had also condemned 
magistrate Mushibwe's K5.1 million fine on Chileshe for the offence 
and called it 'shocking'.

Chileshe had pleaded guilty to the offence.
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