The State has asked the Lusaka Magistrates’ Court to throw out two applications by lawyers representing three men who originally trafficked in 24 kilograms of cocaine which is now missing, arguing that they are frivolous and lack merit.
Defence counsels Keith Mweemba and Shadreck Mbewe had in the last sitting made an application to the court to have the drugs in question subjected to chemical analysis and examination as well as have the accused acquitted as the purported drugs which required retesting had gone missing.
In this matter, Sydney Mwansa, Shaibu Likuta and Teddy Matanda are alleged to have trafficked in 24 kilograms of cocaine which has gone missing whilst in the custody of the Lusaka Magistrates’ Court which eventually led to the arrest of seven court officials and two businessmen.
But when the matter came up before chief resident magistrate Kenneth Mulife, Monday, Deputy Chief State Advocate in charge of taxation and financial management unit Gamaliel Zimba objected to both applications by the defence to have the drugs retested as well as to acquit the accused persons.
Zimba argued that that the application to have the drugs retested was frivolous, vexatious and lacked merit because there was no provision of the law supporting the application.
“The State is objecting to both applications. For the first application relating to the retesting of the drug, the State finds that application to be frivolous, vexatious and lacking merit and as such this court should dismiss it. We have found no provision supporting this sort of application. As such the State is at sea as to what provision of the CPC this application is anchored on,” he said.
Zimba argued that after looking at the exhibits produced in court, it would show that the drugs were seized from the accused persons and later on examined.
“We also had a look at the exhibits that were produced in this court, an affidavit from a public analyst and an an analysis of the two documents, we will show your honour that drugs were seized from the accused persons. Those drugs were later on subjected to the food and drug laboratory for analysis,” he said.
At this point, Mweemba objected to the Zimba’s submission arguing that he was rasing evidence from the bar as the accused persons were not found with the drugs.
“We wish to object to that line of submission from the bar. The law as espoused by the Supreme Court is that evidence from the bar or submissions can not amount to evidence. Therefore adducing evidence in the submissions is not allowed. Non of us in this court qualify to say those were drugs. Those were not drugs. And counsel is not qualified or competent to prove those were drugs. That submission is highly prejudicial to the accused persons. It’s prejudicial to stand at the bar and say drugs were seized from the accused persons. Let the State concentrate on issues raised whether the accused have no right to demand for a retest,” he said.
But Zimba argued that he had not adduced any evidence but simply restated what was already on record.
“State has not adduced any evidence, we are far away from it. What the State has done is to restate what’s already on record. In the case at hand there is an affidavit that was produced by the State stating that, [the drugs that] was subjected to examination by the State tested positive to cocaine and that’s the angle the State is taking. It is not mandatory for the State to call for a public analyst to appear in person because the affidavit if so produced, is sufficient,” he argued.
However, magistrate Mulife overruled the defence’s objection saying Zimba was simply stating the contents of the document and that it would not prejudice the accused.
Meanwhile, Zimba argued that the defence had an opportune time to object, which was at the time the analyst report was given but they did not do so.
“Subjecting drugs to a retest, we are alive that at the time the report from the analyst was given, no objection was given by the defence. Wasn’t the production stage the best time for the defence to raise that issue? Your honour we besiege this court to throw that application out,” he said.
Zimba further argued that the second application by the defence to acquit the accused persons was baffling because sufficient evidence had been produced to prove that the drugs trace back to the accused persons one way or the other.
“There was a further argument that the accused persons should be set at liberty. To say the list, that submission is baffling. Because there is sufficient evidence that has been produced to show that the drugs in question trace back to the accused persons in one way or the other. If the defence are arguing that the accused persons be acquitted, on what basis? A careful perusal of the record will show the kind of exhibits that the State produced,” said Zimba.
“And if I understood the submissions from the defence very well, the submission for an acquittal is anchored on the missing drugs. It is the State’s position that at the time that we produced the affidavit from the food and drugs as prepared by the public analyst, the State had demonstrated at that point that material which was subjected to examination did test positive for cocaine. There is no basis for an acquittal at this stage. We besiege this court to throw out both applications by the defence because they are lacking merit, frivolous, vexatious.”
In reply, the defence applied for an adjournment so that they could give their response with authorities.
The matter has been adjourned to October 11.