MAGISTRATE MUSHIBWE'S 'SHOCKING' K5.1M FINE

WHEN we criticised Lusaka magistrate Victoria Mushibwe's K5.1 million fine on self-confessed cannabis grower and trafficker Sidney Chileshe, we were accused of trying to undermine the judiciary.

But jailing Chileshe for 10 years with hard labour, Lusaka High Court judge Charles Kajimanga yesterday described magistrate Mushibwe's K5.1 million fine as "shocking".  In his judgment, Kajimanga stated that Section 6 of the Narcotic Drugs and Psychotropic Substances Act Cap 96 states that: "Any person who traffics in narcotic drug or psychotropic substance shall be guilty of an offence and shall be liable upon conviction to imprisonment for a term not exceeding twenty five years."

He further stated: "Having convicted the appellant ( Chileshe ) under this section, the trial magistrate ( Mushibwe ) fined him K300,000 in default six months simple imprisonment.  Counsel for the appellant submitted that although the legislature left out an option of a fine in section 6, the court has a wide discretion depending on the circumstances.  "To accept this argument, the court will be usurping the power of the legislature by imputing a meaning in a statute which Parliament never intended.  This is precisely what the trial magistrate did and yet she did not have such powers.  In my view this section is very plain and unambiguous.  It means one thing and one thing only, that is to say, a person convicted under this section shall be given a jail term not exceeding twenty-five years.  It is quite clear that there is no option of a fine."

Therefore, a fine of K300,000 imposed by the trial magistrate is not only wrong in principal but it comes to this court with a sense of shock.  In the circumstances of this case, I consider the fine to be clearly inadequate and misplaced.  Taking into account that the accused is a first offender, the fine of K300,000 is quashed and substituted with a custodial sentence of ten years imprisonment with hard labour."

Judge Kajimanga said Section 9 of the Narcotic Drugs and Psychotropic Substances Act Cap 96 stated: "Any person who, without lawful authority, cultivates any plant which can be used or consumed as a narcotic drug or psychotropic substance, or from which a narcotic drug or psychotropic substance can be extracted, shall be guilty of an offence and shall be liable upon conviction to a fine not less than five hundred penalty units or to imprisonment not exceeding ten years or to both."

Judge Kajimanga also found that Chileshe's fine on the charge of cultivating cannabis was inappropriate with regard to the quantities involved and the manner in which the drugs were cultivated and he stated:

"I am satisfied in my mind that 5,987 kilogrammes of marijuana and its manner of cultivation in a green house are obvious aggravating circumstances which would render a fine of K4,000,000 an inappropriate punishment.  In a case of this nature, I believe that it is the duty of the courts to protect society by imposing a custodial sentence which is more deterrent in order to discourage such determination and ingenuity of the type exhibited by the appellant.

For the foregoing reasons, I quash the fine of K4,000,000 and substitute it with a custodial sentence of five years imprisonment with hard labour.  I consider that this sentence is deterrent enough for a first offender and it is ordered that the fine of K4,000,000 be refunded to the appellant.  The sentences in the first and second count shall run concurrently with effect from today."

After all this, can anyone say magistrate Mushibwe's K5.1 million fine was an oversight?

We believe that magistrate Mushibwe's K5.1 million fine was not a product of oversight nor was it unconscious, but rather that it was deliberate and conscious.  She simply allowed herself to be blinded by other considerations.  And as a result of this, she created a series of problems for the judiciary.This gigantic reversal really shows that there was something seriously wrong with magistrate Mushibwe's fine.  These two contradictory decisions should cause all of us to ask the question, how do our courts arrive at their decisions? How are the sentences determined? Do they have any guidelines, or is it left to their whims?

But this case, the reversal of magistrate Mushibwe's "shocking" fine, should be a lesson for vigilance and intolerance for injustice.  If Zambians did not rise up to question magistrate Mushibwe's fine, the High Court would not have reopened Chileshe's case and he would have gone almost scot-free when many poor peasants are languishing in jails for growing or selling a few grammes of cannabis.

There's nothing wrong with questioning the decisions of our courts so long it is done without malice.The judiciary is entrusted with the most critical part of our life as a nation.  They, like any other institution of the state, should be held accountable.

We as a nation should not shy away from bringing this all important institution into sharp review.

The judiciary must be questioned and challenged to explain its workings.It must not be allowed to operate under a dark cloud of mystery which cannot be questioned.  If this was the case, the judiciary would be irrelevant and become an enemy of the people.

The judiciary is a key cornerstone of the principle of the rule of law.

Our little knowledge of this subject tells us that there can be no rule of law without an independent, autonomous and fully fair judiciary.

A judiciary that ensures that there is equality before the law.  There should be no law for rich people and another law for the poor people.  A perpetration of such a perception would lead to anarchy as our people would lose confidence in this all important institution of justice.The rich should not be seen to be getting away with light sentences when the poor are receiving the stiffest punishment.

Leniency shouldn't be reserved for those that are rich.  Chileshe's case, if it had gone uncorrected, would have left a very bad taste in the mouths of many Zambians.  The man was literally acquitted after he pleaded guilty.  Such injustice should not go unchecked.

The magistrates' courts need to be reformed.  And justice should be for all.

The magistrates' courts are expected to deal with the important cases of plunder of national resources, which caused the avoidable deaths of many Zambians? Are our magistrate's courts equipped to deliver justice?

Our magistrate's courts are proving themselves too shy to convict the rich.  Why?

The judiciary must reposition itself in this new democratic dispensation as the final arbiter and keeper of our rights, rich or poor, famous or unknown, we deserve to have confidence in our courts.

Thanks to judge Kajimanga; his jailing of self-confessed cannabis grower and trafficker Chileshe to ten years with hard labour will go some way in restoring our people's necessary confidence in their judiciary.