Malawian cannabis farmer jailed

A LICENSED Malawian cannabis farmer, who was arrested while in transit to South Africa with 6,5 kilogrammes of marijuana or dagga for laboratory testing and research, has been sentenced to three years in jail for possessing the drug.

Wise Clever Tyanda had approached the High Court for review of the sentence passed by a Chinhoyi magistrate arguing that he is a licensed marijuana farmer.

According to the law, possession of 6,5kg of dagga invariably attracts a sentence in the range of 36 months imprisonment with a portion suspended on the usual conditions when the accused is a first offender.

In this case, Tyanda admitted possession of the drug and produced a paper trail of documents showing that he was taking the drug to South Africa to an identified company for laboratory testing and research.

He had six months suspended on condition of good behaviour.

Tyanda is a member of Vukani Farming Co-operative licensed to cultivate and sell cannabis in Malawi.

According to court papers on September 4, last year, Tyanda entered the country through Chirundu Border Post with 6,5kg of dagga.

He was arrested at a fuel service station in Chirundu by members of the Criminal Investigats Department who had received a tip-off that he was in possession of the drug.

In his appeal against the sentence before Chinhoyi High Court judges Phildar Muzofa and Catherine Bachi-Mzawazi, Tyanda submitted that he was dissatisfied by the magistrate court’s ruling, adding that the sentence induced a sense of shock considering the circumstances of the case that he was en route to South Africa.

He also urged the court of appeal to set aside the sentence and substitute it with a sentence of 12 months imprisonment with six months suspended or a fine and a wholly suspended sentence.

However, Justice Muzofa said in her view a fine would be inappropriate in a case of possession of 6,5kg of marujiana.

Tyanda submitted that he had the paperwork showing where he was taking the drug, adding that the trial court and the State misdirected themselves in relying on the cases where the possessor had no explanation for such possession.

He said his only offence was failure to obtain a transit permit.

The State, however, opposed the appeal arguing that the sentence was in sync with other cases whereby accused persons were found in possession of larger quantities of the drug.

The State referred to a number of cases to demonstrate its point.

After some engagement with the court, the State was ready to make a concession that the trial court must have taken into account the purpose for possession.

In her judgment, Justice Muzofa said the only question on appeal was whether or not the sentence imposed by the trial court was shockingly severe and, therefore, inappropriate.

“We have to determine whether the trial court improperly exercised its judicial discretion in sentencing the appellant,” the judge said.

“An appeal court can interfere with a trial court’s discretion where the trial court has committed a misdirection of a significant proportion to amount to a miscarriage of justice.”

The judge said marijuana was classified as a dangerous drug, adding that research had shown that such drugs were highly addictive with dire consequences on addicts.

Justice Muzofa said the magistrate had paid attention to Tyanda's mitigatory factor when he told the court that it was his first year in the marijuana farming business and that he was looking for a market unfortunately, he was unaware that he needed a permit to be in Zimbabwe with the drug.

“There was no evidence on how the appellant passed through the border without any problems," the judge said.

However, Tyanda produced a letter from Vukani Farming Co-operative addressed “to whom it may concern” as proof that he was authorised to possess the drug.

Justice Muzofa said the letter was more of an authorisation letter for Tyanda, one of their members to travel to South Africa and submit the drug to Agriculture, Land Reform and Rural Development department for sampling.

However, the judge said, failure to obtain a transit permit was not the appellant’s doing alone, but the Vukani Farming Co-operative’s responsibility as well.

“As a co-operative in this business they were required to be intentional about seeking information on how to transport the dagga to South Africa. They were negligent. Nothing much turns on their negligence since the offence requires intention.

“The circumstances of the case, coupled with the plea of guilty must have swayed the court to impose a less onerous sentence.

“The appellant’s blameworthiness is really on his failure to obtain a transit permit. The offence is possession; the explanation for the possession is an important consideration in sentencing in this case. It was proved a short custodial sentence would be appropriate in the circumstances," Justice Muzofa ruled, while reducing the sentence to 18 months imprisonment of which nine months were suspended.

Tyanda will, thus, serve an effective nine-month jail term.