An 81-year-old grandfather who was acquitted by the Lusaka Magistrate Court, for allegedly trafficking in 68 grams of marijuana has petitioned the Constitutional Court claiming damages for unlawfull arrest and prosecution.
Tie Mwape of Kavuma Village in Chongwe District stated that the Drug Enforcement Commission (DEC) officers flouted the provisions of sections 2 and 16 of the Narcotic Drugs and Psychotropic substances Act as read together with the Third Schedule to the Act as they failed, neglected or refused to subject the marijuana to laboratory tests to determine as to whether it contained more than 0.3 percent of Delta 9 Tetrahydrocannabinol (THC).
Mwape explained that he was arrested, arraigned and convicted for the offence of trafficking in of psychotropic substances contrary to section 15 (2) of the Narcotic Drugs and Psychotropic substances Act no. 35 of 2021 as read together with SI no.119 of 1995.
He was again on November 26,2022, arrested under the similar provisions but was consequently acquitted.
The petitioner contended that the actions by DEC contravened provisions of article 11(a) and 13(1) of the Constitution which guarantees the petitioner’s right to liberty.
He claimed that all the arrests and prosecution were conducted by DEC without subjecting cannabis to laboratory tests.
Mwape who cited the Attorney General and DEC as first and second respondents in the matter seeks an order of the Court that the arrest, prosecution and conviction without establishing the content of Delta 9 THC in the substance allegedly in his possession was unconstitutional, illegal, and void.
He wants a declaration that his arrest, prosecution and conviction under cause no.CRMP/008/ 22 was unconstitutional, illegal and void.
And that the Constitutional Court should declare illegal all arrests and convictions of persons without adhering to the provisions of sections 2,15 (1)(2) and 16 of the Narcotic Drugs and Psychotropic substances Act as read together with the Third Schedule.
Mwape wants an order that the possession of cannabis of the grade or value of 0.3 percent is legal as it does not fall within the prohibited grades under Narcotic and psychotropic substances Act as read together with the Third Schedule and damages for lawful arrest, detention and prosecution.
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