THE state has submitted to the Lusaka High Court that the Drug Enforcement Commission (DEC) director general has power to enter, search and seize any articles relevant to an investigation.
The state further argues that the power to enter, search and seize any article relevant to an investigation is exercised after issuance of a legitimate search warrant by the DEC director general.
This is a matter in which Chipangali PF member of parliament Andrew Lubusha petitioned the Lusaka High Court seeking a return of the properties and documents seized from him by the Drug Enforcement Commission (DEC).
He is seeking a declaration that the director general of DEC has no authority to issue a search or seizure warrant, and a declaration that neither section 52 or 53 of the Act grants the DG power to issue a warrant, and that if the said sections allow the DEC DG to issue a warrant, the said provision is ultra vires the Constitution, therefore null and void to the extent of the inconsistency.
Lubusha is further seeking a declaration that the search and seizure of his property by DEC officers was ultra vires Articles 12, 13, 16, 17 and 18 of the Constitution, an order of certiorari quashing the warrants issued by the DG and an order of mandamus compelling the DEC to return all the documents and electronic gadgets that were seized from his premises.
But in the respondent’s answer, the Attorney General who was cited as the respondent stated that prior to the search in issue being conducted, Lubusha was served with a search and seizure warrant which he signed in the presence of his lawyer and allowed the investigators to proceed with the search without any objection.
The state stated that it seized articles relevant to the ongoing investigation and that the said articles could not be released as it would jeopardize the ongoing investigations.
“The petitioner (Lubusha) was not falsely imprisoned but cooperated with the investigators by accompanying them to the office in the presence of his counsel. At DEC office the petitioner was officially given a call out in the presence of his counsel to appear for an interview at a later date,” the state submitted.
The state submitted that civil process could not be used to evade the criminal process, adding that Lubusha was trying to use the civil process to stifle a legitimate criminal investigation.
“The Constitution allows for compulsory possession of property for as long as may be necessary for the purposes of any examination, investigation, trial or inquiry. Therefore, the actions of the respondent were not inconsistent with the Constitution. The Constitution further allows for the search of premises if done under the authority of any law that makes provision for the same. The search and seizure warrant was issued and executed lawfully,” the state submitted.
“The director general has power to enter, search and seize any articles relevant to an investigation. The power to enter, search and seize any article relevant to an investigation is exercised after issuance of a legitimate search warrant by the DG.”
The stated urged the court not to grant Lubusha the reliefs he was seeking, arguing that he was not entitled.
Lubusha stated in his petition that on August 23, 2021, persons who identified themselves as officers from the Commission did, without lawful authority; enter his residence at plot number 382a Ibex Hill, Lusaka.
He stated that despite being alerted about his absence, the officers secured the premises and caused two police officers to be stationed at the said residence.
Lubusha stated that the officers returned the following day and produced a search and seizure warrant that was pre-signed by the DEC director-general.
“On August 24, the officers returned to the residence of the petitioner where they, in the presence of the petitioner and his counsel purported to fill in what they purported to be a search and seizure warrant. The purported warrant filled in by the officers was not issued or signed by a magistrate. To the contrary, it was a pre-signed form which they alleged to have been issued and signed by the Director General of the DEC. The purported warrant was purported to be issued pursuant to sections 52 and 53 of the Narcotic Drugs and psychotropic substances Act No.35 of 2021, being provisions that purportedly give the DG of DEC power to issue a search and seizure warrant,” he stated.
Lubusha stated that the officers, being led by Kabwe Ngandwe proceeded to conduct a search at his residence for almost an entire day after which they seized his electronic devices and a consignment of documents from his house.
He stated that after the search and the seizure which lasted till the late hours of the day, the officers without cause, apprehended him, bundled him into their motor vehicle and drove him to their offices in Ridgeway area.