Big cloud hangs over drug cases

Dar es Salaam. The judiciary’s handling of drug cases has become a source of deep concern, with some quarters alleging that drug traffickers take advantage of controversial court decisions to secure bail and even earn freedom in violation of the law.

Inquiries during the week that has seen raging debate on whether Tanzania was losing the war against drug trafficking, reveals that several court rulings have raised eyebrows in the legal fraternity, following the release in questionable circumstances of suspected drug lords.

Highly placed sources in the corridors of justice confided to The Citizen on Saturday that some senior government and judiciary officials have severally put pressure on prosecutors to drop or interfere with cases in order to secure relief for their associates.

That is one of the dimensions of the illicit business that has put the country in the top league of notorious transit points.

Those at the forefront of the drug war say without full co-operation of all arms of state and other players to strictly adhere to the law, optimism for winning would remain a pipe dream.

The granting of bail to one Abdallatif Fundikira who had been charged with trafficking bhang worth Sh11.8 million and the dropping of a case against Mwinyi Ismail, who was charged with trafficking in heroin valued at Sh11 million, are examples of the blatant abuse of the law.

Yet another questionable judgment by the court of appeal was the quashing of a life sentence handed by the High Court against four men found guilty of trafficking in heroin worth Sh40 million.

Fundikira’s case

Fundikira was arrested in May 2012 soon after the police arrested 29-year-old Mariam Mohamed Said at Julius Nyerere International Airport (JNIA) with 23 packets of bhang moments before she bordered a Turkish Airline plane destined for Istanbul. Police pounced on him after several failed attempts, finding him hiding in the roof of his house.

The woman suspect earlier confessed to the police that she had been a courier for the accused to deliver the cargo for a fee of $2,000 (Sh3.2 million).

The two were subsequently charged at the Kisutu Resident Magistrate’s Court with drug trafficking. While Fundikira is out on bail, the woman co-accused is still languishing at the Segerea Remand Prison pending conclusion of the case.

Section 148 (3) (5) (iii) of the Criminal Procedure Act forbids the police or court to grant bail to any person if he or she is charged with an offence involving trafficking drugs with an established value exceeding Sh10million.

The drugs include bang, heroin, cocaine, prepared opium, opium poppy, poppy straw, coca plant, coca leaves, mandrax, khat or any other narcortic drug.

But in December 2012, Fundikira applied for and was subsequently granted bail in April this year after spending six months in remand.

In granting him bail, the High Court sided with Fundikira’s lawyers who argued that the bail could not be denied simply because their client had been mentioned by another person found in possession of the drugs.

The court averred Fundikira could be a victim of “hatred and lies” of co-accused Mariam Mohamed Said. A top politician in government was singled out as among individuals who put pressure on the prosecution to release the suspect.

Asked about the legal interpretation of Fundikira’s release, head of the Directorate of Public Prosecutions (DPP)’s Dar es Salaam Zone, Mr Ponsiano Lukosi, told The Citizen on Saturday that his office was concerned about the manner in which the case was handled.

“Laws must be strictly observed when it comes to drug cases. Short of that the war is going to be even more difficult,” he said, noting that his office has filed a notice of intention to challenge the decision to release Fundikira. He declined further interviews.

Head of Anti Drugs Unit (ADU) Assistant Commissioner of Police Godfrey Nzowa also declined comment on the case but said there was an urgent need for courts to strictly interpret the laws to help in the difficult war against well established and politically connected drug traffickers.

Mwinyi’s case

Mwinyi Rashid Ismail was arrested in December 2011 at Kigamboni in possession of 255grams of heroin worth Sh11million and charged at the Temeke District Court with the offence.

Before the case could progress to hearing, a state attorney entered a nolle preseque, reporting that the DPP was not interested in pursuing the case. Initially before the baffling decision to drop the case, the matter was withdrawn from a judge whom sources in the judiciary said had shown “reluctance to co-operate.”

Life sentence

Another court decision which anti drug crusaders consider a serious setback is the quashing of life sentence imposed by the High Court in 2010 on the four men charged with trafficking Sh40 million worth of drugs. They had been arrested at a hotel in Mtwara in February 2006 upon arrival from Mozambique with 273 pellets.

Abuhi Omar Abdallah, Hassan Hussein Hassan, Salum Jabiri Kivurande and Abdallha Omari Zimbwe were jailed in February 2010 by Justice Kassim Nyangarika who said evidence adduced by the prosecution was “water tight.”

But the convicts would later walk to freedom in October 2012 on technicalities. The presiding three judges argued that although they absolutely believed the pellets analysed by the Chief Government Chemist were heroine, absence of testimony of police officers who took the drugs to the government chemist for analysis was enough to set the suspects free.

According to the judges, it could not be proved beyond reasonable doubt that the pellets tendered in court as exhibits were the very ones which the government chemist analysed. They also questioned where the drugs had been kept prior to the analysis.

These and the apparent lack of progress in many other cases before the court would likely come into focus as the country continues to search for a solution to the drug trafficking menace.