By GRACE CHAILE
An 81-year-old man who was acquitted by the Lusaka Magistrate Court, for the offence of trafficking in of psychotropic substances, has filed a petition in the Constitutional Court demanding that the State compensates him for unlawful arrest and prosecution.
Mr Tie Mwape of Kavuma Village in Chongwe District is seeking an order that his arrest, prosecution and conviction without establishing the content of Delta 9 Tetrahydrocannabinol (THC) in the substance allegedly in his possession was unconstitutional, illegal, and void.
He wants the Concourt to declare illegal and void all arrests and convictions of persons without adhering to the provisions of sections 2,15 (1)(2) and 16 of the Narcotic Drugs and Psychotropic substances Act as read together with the Third Schedule.
The petitioner also seeks an order that the possession of cannabis of the grade or value of 0.3 percent is legal as it does not fall within the prohibited grades under Narcotic and psychotropic substances Act as read together with the Third Schedule.
Mr Mwape wants a declaration that his arrest, prosecution and conviction under cause No. CRMP/008/ 22 was unconstitutional, illegal and void.
Mr Mwape in his petitioned stated that he was first arrested, arraigned and convicted for the offence of trafficking in of psychotropic substances contrary to section 15 (2) of the Narcotic Drugs and Psychotropic substances Act no. 35 of 2021 as read together with SI no.119 of 1995.
He was however arrested for the second time on November 26, 2022, under the similar provisions but was consequently acquitted this time.
“The agents of the second respondent (DEC) contravened the provisions of sections 2 and 16 of the Narcotic Drugs and Psychotropic substances Act as read together with the Third Schedule to the Act as they failed, neglected or refused to subject the marijuana to laboratory tests to determine as to whether it contained more than 0.3 percent of Delta 9 (THC),” he stated.
Mr Mwape said that DEC contravened provisions of article 18(8) of the Constitution which protects him from being convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law.
He said that the the actions and omissions by DEC breached provisions of article 11(a) and 13(1) of the Constitution which guarantees the petitioner’s right to liberty.
In January, this year, the petitioner was acquitted by the Lusaka Magistrate Court of trafficking in 68 grams of marijuana.
Magistrate Davies Chibwili acquitted Mr Mwape on grounds that the state failed to determine the required quantity of Delta-9 THC in the said drug.
He however warned Mr Mwape ever to repeat his actions, as he risked ending up in prison forever.