Court frees magistrate, officials accused of drug theft

THE Lusaka Magistrates’ Court has freed suspended magistrate Kunda Tantameni and other court officials of charges of abuse of authority, removal of property under lawful seizure and stealing of 34.0 kilogrammes of ephedrine drugs worth over K1,870,000.

Magistrate Susan Mangalashi acquitted Magistrate Tantameni, Felix Mkandawire, a court interpreter and Francis Mphanza, a senior public prosecutor at Drug Enforcement Commission on grounds that the prosecution failed to produce sufficient evidence to warrant her to establish a prima facie case against the three.

She noted that all officers at the Lusaka Magistrates’ Court Complex and the judiciary would be liable for the same offences as it was a practice by all magistrates and prosecutors to use unsigned indictments pending submission of the duly signed indictment from an allocating court.

Magistrate Mangalashi said according to her analysis, no evidence could link the three to who exactly took the drugs and that the motive behind the trio having allegedly stolen the drugs was not proved.

It was alleged in count one that Mphanza and magistrate Tantameni on November 8, 2017, being persons employed in the public service as public prosecutor and magistrate respectively, jointly and whilst acting together, used their position to obtain property for profit, advantage or benefit for themselves or another by direct or indirectly allocating the case of The People vs Beatrice Saili without the authority of the Chief Resident Magistrate.

It was alleged in the second count that Mkandawire and Mphanza on the same date, knowingly and with intent to hinder or defeat the process, concealed, 34 KGs of ephedrine valued at K1,870,000, which was taken under the process of the authority of the court of Magistrate Tantameni.

It was also alleged in the last count that Mkandawire, Mphanza and magistrate Tantameni between November 8, 2017 and December 30, 2017 whilst acting together stole 34 kilograms of ephedrine.

But delivering ruling on case to answer, magistrate Mangalashi that there was a dereliction of duty by the officers who were investigating the matter as they did not extend their investigations to other magistrates.

“The arresting officer failed to question principal resident magistrate Mwaka Mikalile over her statement warning all magistrates at magistrates’ court to desist from getting non-endorsed charge sheets from their prosecutors before the allocating courts finally deliver their signed charge sheet to them through their interpreter,” she said.

“The officer also failed to interview other magistrates who were reported to have also practiced self-allocation of cases.”

Magistrate Mangalashi said the evidence presented to her by the registry clerk Collins Jere only confirmed that Mphanza and magistrate Tantameni self-allocated a case to themselves but there has been no motive for allocating the case to themselves to get a hold of the ephedrine drugs worth K1.8 million.

She said based on the evidence before court, she did not find sufficient evidence as proof of the elements of the charges that the accused persons obtained a profit, advantage, property or benefit.

Magistrate Mangalashi said although some State witnesses claimed that they saw Mkandawire remain with the drugs after Saili was jailed, the prosecution produced no evidence that it was Mphanza’s duty to take the exhibits to the store room.

She said that the State did not specifically prove how Mkandawire and Mphanza removed the drugs from the court premises in order to hinder the process of DEC disposing of the drugs.

“On the allegation of the theft of drugs, the State did not introduce evidence of theft, that the drugs or proceeds of the drugs went to the accused persons. None of the witnesses for the prosecution stated that they saw the accused taking the ephedrine,” she said.

Magistrate Mangalashi said the officer did not thoroughly investigate the matter neither did the then chief resident magistrate Kenneth Mulife confirm whether a search was done within the court premises to establish whether the drugs were indeed unlawfully removed from the court premises as inferences were drawn that either, the drugs were lawful forfeited before magistrate Tantameni and Mkandawire took them or the senior clerk of court Didie Kangwa, who was in custody of drugs as exhibit officer, received and possibly took them.

She said there was a dereliction of duty in the manner the case of 34.0 kg ephedrine drugs was handled by the arresting officer in her failure to question other witnesses or do a thorough investigation to trace the movement of the drugs because the drugs might still be lying in a corner of the court premises or the same room.

The court said the State should have dug deeper by closing up all the loopholes such as searching of the court premises or homes and bank accounts to obtain better evidence to make an airtight case.

“Accordingly, PW10’s (arresting officer) failure to interview all the magistrates, search the accused or do lifestyle audit and even search the entire complex was a dereliction of duty on the part of the investigative powers of the police,” magistrate Mangalashi said.

“The State’s evidence was discredited by cross-examination that any reasonable tribunal could not convict the accused. The evidence is manifestly unreliable and even if I was to put them on their defence I cannot safely convict them. I acquit all three accused, restoring their liberty forthwith.”

Magistrate Mangalashi also granted the State leave to appeal.

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