A minor error committed by a Zanzibar High Court Judge has saved a suspected drug baron, Othman Issa Mdabe, from remaining behind bars for 15 years and paying 20m/- fine for illegal possession of 277 packets of bhang.
Court of Appeal Justices Mbarouk Mbarouk, Bernard Luanda and Ibrahim Juma nullified the conviction of the offence against Mdabe and the subsequent sentence provided, after noting that the trial judge did not sum up the evidence given by the prosecution and defence to court assessors as required by law.
“Having satisfied ourselves the importance of summing up the evidence to assessors, the record in the instant case does not show the judge to have summed up the evidence to assessors. We are increasingly of the view that failure by the trial judge to sum up in writing was fatal,” they ruled.
The justices said it was not enough by the trial court to state it orally that Section 278 (1) of Zanzibar Criminal Procedure Code to have been complied with. Such defect, they ruled, rendered the decision of the High Court a nullity.
They said that without summing up, the trial could not be said to have been conducted with the aid of assessors. “Having established that the decision of the High Court is a nullity, we are constraint to invoke the powers conferred upon us under Section 4 (2) of the Appellate Jurisdiction Act by quashing the proceedings and setting aside the sentence against the appellant (Mdabe),” they ruled.
Since the trial was defective, the justices ordered the matter to be tried afresh before another judge with a new set of court assessors.
The prosecution had alleged that on June 20, 2011 at Zanzibar Port of Malindi at around 5.15pm, in the Urban District within Urban West Region of Unguja, while arriving from Tanzania Mainland, the appellant was unlawfully found in possession of pillows of different colours.
Such pillows, it was alleged, contained 277 packets of narcotic drugs known as bhang weighing 13.87kg. He was arrested and eventually charged before being convicted of the offence by the High Court of Zanzibar at Vuga on December 30, last year.
By FAUSTINE KAPAMA, Tanzania Daily News