JUDICIARY OF TANZANIA: COURT SAVES BUSINESSWOMAN FROM LIFE IMPRISONMENT

By Faustine Kapama-Judiciary

THE Court of Appeal has saved businesswoman Remina Abdul, from remaining behind bars for the remainder of her life for allegedly trafficking in 201.38 grams of Heroin Hydrochloride, which are dangerous narcotic drugs.

Justices Shaban Lila, Lugano Mwandambo and Lillian Mashaka ruled in favour of Remina, the appellant, after allowing her appeal she lodged to oppose the findings of the High Court’s Corruption and Economic Crime Division. They ruled that there was no sufficient evidence to ground the appellant's conviction.

“Consequently, the appeal is hereby allowed, conviction is quashed and the sentence is set aside. The appellant shall be released from prison forthwith if not held therein for another justifiable cause,” the justices declared in a judgment delivered recently in Dar es Salaam.

They noted that the drugs substances, the subject matter of the charge preferred against the appellant found during a seizure exercise conducted by the police from the Drugs Control and Enforcement Authority (DCEA) at her house at Kinondoni, were improperly admitted by the court during the trial.

The justices noted that admissibility of the drugs was questioned by appellant on the ground that they were not listed during committal proceedings, thus subjected to compliance with Rule 8 of the Economic and Organised Control (the Corruption and Economic Crimes Division) (Procedure) (CECD) Rules.

To ensure that it was made clear, the justices went, the drugs ought to have been explained and listed as being among the intended prosecution exhibits and should have been made known by the appellant during the committal proceedings.

“It is for this reason that, during committal proceedings, it is now established practice that courts not only read and list potential prosecution witnesses, but also read or explain contents of documents and then list down documentary and physical exhibits the prosecution would rely on during trial,” they said.

The justices also pointed out that although the drugs (exhibit P3 (a)) were mentioned in the letter transmitting the information to the trial court and also may have been mentioned in the witnesses' statements, that would not have made it admissible.

“We accordingly hold that (the drugs were) improperly received as an exhibit. We expunge it from the record of appeal. Having expunged exhibit P3 (a), the subject matter of the charge, from the record, definitely, no other evidence would be able to ground the appellant's conviction,” they said.

The justices would have ended there, but were compelled to consider other grounds of appeal on the propriety of search conducted at the appellant's house.

They noted a contention by prosecution on the applicability of the provisions of the Criminal Procedure Act (CPA) in searches conducted by officers of DCEA in matters related to drugs.

While the prosecution forcefully argued that section 48 of the DECA does not impose as a requirement that an officer conducting search should have a search warrant when conducting search, the counsel for the appellant, on the other hand, had a different view.

The justices referred to one of previous cases of which the Court, after a thorough examination of sections 32(7) and 48(2) of DCEA and section 38 (1) and (3) of the CPA which deals with search, pronounced that there was no justification to argue search warrant was not required.

“Given that stance of law, possession of search warrants where search is not an emergence, observance of time of conducting search and need for permission from magistrate when (it) is conducted beyond prescribed time as stipulated by the law, are matters which cannot be dispensed with,” they said.

The justices noted further that the police officers who conducted the search were summoned by their boss in his office at DCEA at around 20:30hrs and were told about the mission of conducting search at the appellant's residence.

“(The police officers) then prepared themselves by taking the firearms, search order and papers for recording witness statements. Nothing came out from them as to what prevented them from obtaining a search warrant,” they observed.

Besides, according to the justices, members of the search team arrived at Kinondoni at around 20:45 and search was conducted at 21:00hrs, which was night time, thus the search conducted, under the circumstances, cannot be said to be an emergence one.

They also noted that the search team had enough time to ensure they comply with the laws regarding search and seizure by possessing the search order and search warrant and more so, such search was conducted at night time without the court's permission.

“As those documents were not produced in court during the trial, we have no hesitation to agree with (the counsel for the appellant) that there was non-compliance with the provisions of section 38 and 40 of the CPA, (thus) rendering the search illegal,” the justices concluded.

It was alleged during the trial that Remina Abdul and two other people, who were acquitted for lack of evidence, were arraigned before the High Court charged with trafficking in 201.38 grams of Heroin Hydrochloride, on August 29, 2017 at Kinondoni Ufipa area within Kinondoni District in Dar es Salaam.