Mussa John captured with the Indian Hemp he was found in possession with
* Lawyers have discovered that John was wrongly charged as a 19-year-old and they will argue that he is 17 years old
* Thus he should have been accorded the protection of a child under the Child Care Protection and Justice Act
* Lawyers will also argue that his right to a fair trial was violated as he was not provided with a legal practitioner considering the seriousness of the offence that he was charged with
By Duncan Mlanjira
The case of Mussa John, who was convicted to a mandatory custodial sentence of 8 years by the Senior Resident Magistrate Court, is set to be reviewed tomorrow, June 12 by the High Court but as a 17-year-old offender, not 19 as heard in lower court.
Now legally represented by Alexius Kamangira of Nicholls & Brookes alongside Chikondi Chijozi, Ruth Kaima, and Luntha Chimbwete of Southern Africa Litigation Centre and the Centre for Human Rights, Education Advice and Assistance, the lawyers have discovered that John was wrongly charged as a 19-year-old and they will argue that he is 17 years old — thus he should have been accorded the protection of a child under the Child Care Protection and Justice Act.
The notice from the High Court records that On June, 15 2022, Mussa John “was allegedly found with 78 plastic bags (weighing about 134 kilograms) of Indian Hemp at his home and charged with being found in possession of Indian Hemp without a licence — contrary to Regulation 4(a) of the Dangerous Drugs Regulations, as read with Section 19(1) of the Dangerous Drugs Act”.
“The offence of possession of Indian Hemp without a license attracts a maximum penalty of life imprisonment. When the Applicant appeared before the Magistrate’s Court, he was unrepresented, and he pleaded guilty to the offence.”
On behalf of John, the lawyers will argue in the High Court that the 8-year conviction be quashed and set aside his sentence.
The lawyers will also argue that “the Magistrate Court erred in accepting his guilty plea in circumstances where it contradicted his caution statement which indicated that he was not in possession of the Indian Hemp”.
The lawyers “will also argue that his right to a fair trial was violated as he was not provided with a legal practitioner considering the seriousness of the offence that he was charged with”.
The notice observes that the lower court record indicates that John is 19 years old, but he will argue that he is 17 years old and “even though the issue of his actual age was not presented before the lower court, he will argue that the lower court should have invoked the provisions of section 138 of the Child Care Protection and Justice Act which allows for extension of application of the Act to young persons over the age of 18”.
“He will further argue that the charge sheet was defective and that the sentence imposed by the lower court is excessive considering his age and the sentencing trends for the offence.”
The review is in the wake of a decision made by acting Chief Resident Magistrate (South), Chisomo Msokera, who found not defective teenager, Mussa John’s 8-year custodial sentence but had advised for the review of the case.
Dated June 27, 2022 under the subject ‘Confirmation and Supervisory Review of Sentencing in Rep. v John (criminal case number 475 of 2022) and Rep. v Milhade and another criminal case number 567 of 2022’), Msokera took cognizance of the hot debate that ensued soon after John’s conviction.
The hot debate was awash on social media in comparison to the sentence meted on Herve Milhade, Castel Malawi’s managing director — who was also found that he was cultivating the same illegal hemp but was just fined.
“The social media is awash with debates on the propriety of an 8 years imprisonment sentence imposed on a 19-year-old convict on a charge of possession of cannabis sativa.
“There have been questions on whether the punishment meets the demands of distributive justice since retributive sentence appears, as some claimed, off tangent some of the sentencing trends by the magistracy where fines and not custodial sentences have generally imposed.
“One of such cited cases is Rep. v Milhade and another criminal case number 567 of 2022 where the convicts were sentenced to pay a fine of K1 million and in default to serve custodial sentence of 12 months on a charge of cultivating cannabis sativa.”
Msokera observed that the case of the teenager was heard in chambers of the Senior Resident Magistrate Court because there is no designated court room space at Limbe Magistrate Court but the chambers were used as open court.
“The charge is defective as it cites a wrong punishment provision and does not cite the statute book where the offence is provided for. Section 19(1)(a) and not section 16 of the Dangerous Drugs Act is the appropriate punishment provision; and the offence is created under the Dangerous Drugs Regulations.
“The Judgement on Sentence gives reasons as to why, not withstanding the dictates of Section 340 of the Criminal Procedures and Evidence Code, the convict deserves an outright custodial sentences.”
“Msokera also observed that “the Judgement on Sentence took into consideration the mitigating circumstances of the convict being a young person” and that “other than the irregular charge, this was a proper matter which should be forwarded to a superior court strictly for proceedings of review on confirmation under section 15 of the Criminal Procedures and Evidence Code”.
“Other than what I have specifically highlighted herein, the rest of the proceedings — as far as the court record is concerned — does not strike me as defective.
“In view of the cited irregularity and considering the perceive injustice of the sentence as it relates to Milhade and another, Msokera thus invokes section 26(1) of the Courts Act in asking for a “superior court to exercise its supervisory powers in addition to the review on confirmation proceedings over both matters”.
“It is my hope that the process of supervision and review on the confirmation by the High Court shall enrich our sentencing jurisprudence to aid the courts of magistrates in meting our appropriate sentences in cases of this nature.”