JUDICIARY OF TANZANIA: INDONESIAN SUFFERS APPEAL DEFEAT OVER COCAINE TRAFFICKING

By FAUSTINE KAPAMA-Judiciary

THE Court of Appeal has confirmed both conviction and the life imprisonment sentence imposed on Indonesian drug dealer, Mychel Andriano Takahindengeng, for trafficking in cocaine hydrochloride weighing 3,932.44 grams.

Justices Shaban Lila, Ignas Kitusi and Lilian Mashaka ruled against Takahindengeng, the appellant, after dismissing the appeal he had lodged against findings of the High Court’s Corruption and Economic Crimes Division.

“(…..) this appeal against the conviction and sentence, stands dismissed,” they declared having rejected several complaints the appellants had raised in attempt to fault the findings of the High Court on the matter.

During hearing of the appeal, the appellant had complained, among others, that the testimony of prosecution witnesses as regards to the colour and number of the bags, the contents and the labeling of the drugs in question was marred by contradictions, thus not reliable.

He complained also that the chain of custody of the drugs was broken, ownership, search and seizure of the bag containing the suspected drugs, propriety of the sentence and admissibility as evidence of the alleged drugs, the bag and statement of a witness who was not available to testify.

In their judgment delivered in Dar es Salaam recently, the justices pointed out as regards to the reliability of the witnesses that they were are not oblivious to the fact of life that two or more people who witness an event, may not later tell it in exactly the same way.

“This fact of life has developed into a legal principle and it is considered to be a sign that the witness did not rehearse the story. (….) the so-called contradictions on colour and number of the bag(s), as well as on its contents, are but delicate details that do not affect the epicenter of the case,” they said.

As to the ownership of the bag, the justices agreed with the findings of the trial judge that it belonged to the appellant because he showed up to identify it and that irrespective of the fact that nobody saw him placing the same on the machine, his own conduct confirmed him as its owner.

“In our conclusion therefore, ownership of the bag, the search and seizure of that bag, were proved by the witnesses we have found to be reliable and also by the appellant's own conduct. Therefore, (these) areas of complaint have no merit, we dismiss them,” they ruled.

The justices took into consideration the evidence of prosecution witnesses, who provided an impeccable oral chronology of events and chain of custody of the suspected packets from the Julius Nyerere International Airport up to Anti-Drug Unit Head office and later to the Chief Government Chemist office.

According to them, the appellant's complaint that the bag tendered in court as exhibit was not the same as the one seized from him, is both surprising and misconceived.

“First of all, there was no objection to its admissibility and secondly, there would be no motive to change the bag which is of less significance compared to the four suspected packets. We therefore agree with the conclusion reached by the trial judge and dismiss this complaint,” they ruled.

Regarding the complaint on admissibility of evidences tendered by the prosecution, the justices noted that exhibit P7 was admitted without objection from the appellant's counsel, thus such complaint could only be a misconception.

As for exhibits P5 and P6, they also observed that the criticism was pegged on the alleged contradictions which was resolved in favour of the prosecution on the colour and number of the bags, the contents and the labeling. Thus, the justices concluded that such area of complaint rests on a vacuum.

On the propriety of sentence, they noted that the trial judge sentenced the appellant to life imprisonment as being the mandator sentence in terms of section 16 of the Drugs and Prevention of Illicit Traffic in Drugs Act, as amended by Act No. of 2012.

“As that is the law, our hands are tied, so we dismiss (this) ground of complaint for lacking merit,” the justices ruled.

There was no dispute that the appellant, an Indonesian, had been in Tanzania from August 6, 2012 and was set to leave the country on August 12, 2012 for other destinations. It was alleged that the events that led to the case from which the appeal originates, took place on the latter date.

The prosecution's case was that on August 12, 2012 while the appellant was checking in at the Julius Nyerere International Airport (JNIA) ready for departure, his baggage was subjected to the usual screening.

One officer who was operating the screening machine, noticed a suspicious image in one of the bags and he instructed a security officer to conduct a physical search of that bag.

As the appellant did not heed to instructions to open the bag, such officer opened it himself in the presence of a police officer stationed at the JNIA. From that bag, such two officers retrieved four packets which contained what they suspected to be narcotic drugs.

Such a suspicion was later confirmed through scientific tests conducted by the office of the Chief Government Chemist (CGC).