By A Correspondent| The trial of two Harare men accused of dealing in dangerous drugs has exposed the shortcomings of the law as it does not classify crystal meth better known as mutoriro as a dangerous drug.
Prince Samuriwo and Humphrey Banda were arrested and charged with dealing in dangerous drugs and unlawful possession of dangerous drugs involving 83 grams of crystal meth.
The two represented by Admire Rubaya and Malvin Mapako appeared before the Harare Magistrates Court where they denied the allegations.
The duo’s lawyers argued that there is no such thing as crystal meth in the Dangerous Drugs Act and that the arrest of their clients was illegal.
Rubaya and Mapako also argued that their client’s prosecution was contrary to law.
“The state alleges that crystal methamphetamine that the accused was allegedly found in possession of is a dangerous drug yet there is no such drug listed in the relevant schedule to the Dangerous Drugs Act [Chapter 15:02],” Samuriwo’s lawyer Rubaya argued.
Rubaya accused the state of using public outcry or political interference to arrest people.
“A drug does not become a dangerous drug simply because the general populace, the State and or politicians wants it to be treated as a dangerous drug whose alleged possession is punishable in terms of the criminal law.
“It is not the general unhappiness of the law enforcement agencies, politicians or the society at large that proscribe possession of or dealing in crystal methamphetamine but positive legislative enactment.
“In the absence of crystal methamphetamine being listed as a dangerous drug in the schedule, no offence can arise in relation to anyone alleged to have been found in possession of crystal methamphetamine in Zimbabwe,” they argued.
The defence told the court that the only drug which shares a resemblance with crystal methamphetamine is the methylenedioxymethamphetamine but the two are different hence one cannot be charged under that.
“The Dangerous drugs Act does not indicate that methylenedioxymethamphetamine is also known as crystal methamphetamine. Scientifically, the lawyers argued, methylenedioxymethamphetamine and methamphetamine are also different.
“Methylenedioxymethamphetamine and methamphetamine might be belonging to the family of drugs called phenethylamines and under the generic name amphetamines but these drugs are different drugs.”
The two have divergent effects and produce differing neurochemical and behavioural responses in human beings.
“The two drugs have different molecular structures, have different scientific names. Methamphetamine is also known as Nadimethylphenethylamine whilst Methylenedioxymethamphetamine is known scientifically as Nadimethylmethylenedioxyphenethylamine.Therefore, these two drugs are scientifically different,” he argued.
The lawyers are pushing for the freedom of their clients stating that if the State cannot proffer evidence that crystal methamphetamine is a dangerous drug in terms of the Dangerous Drugs Act then there is no offence created.
“It is submitted that if crystal meth is not a scheduled drug, then the conduct forming the basis of the charge being preferred against the accused person is not recognised in our law as a crime.
“Therefore, the Accused’s alleged type of conduct being allegedly found with sachets of crystal meth is not proscribed by the law in Zimbabwe.”
Therefore, once the court finds that crystal meth is not a scheduled drug in terms of the Dangerous Drugs Act, then the Accused cannot possibly be placed on remand nor convicted of conduct which is not recognised by the Zimbabwe law as a crime.
“On that score this court has no legal basis to convict an accused person because what is being alleged by the State is not an offence. There is need for an express designation of crystal methamphetamine as a dangerous drug in terms of the relevant Acts of parliament,” Rubaya argued.
During cross examination, one of the witnesses Shelton Gambiza, an officer from Zimbabwe Anti-Corruption Commission conceded that crystal meth was not listed as a dangerous drug on the schedule to the Dangerous Drugs Act.
Asked on the scientific nature of the drug, Gambiza referred everything to the expert police officer who was allegedly enlisted to scientifically examine the alleged recovered drugs.
The defence said it is the State’s duty to specify crystal meth as a dangerous drug failure of which the law as it currently stands does not create a crime from the alleged possession of crystal meth or any dealings in crystal meth.
“Had the legislature intended to designate crystal methamphetamine as a dangerous drug in terms of the law at the time of drafting, they would have done so expressly. In any event section 14 of the dangerous drugs Act could have been used.”
The lawyers further argued that the court has no legislative powers and it cannot read crystal methamphetamine into the definition in the statute and they asserted that the court’s role was simply to speak the law as it is provided for in the statute not to usurp the role of the legislature to make the law.
The matter was then postponed to November 21 for trial continuation.