MALAWI: HIGH COURT IN BLANTYRE REVIEWS THE CASE OF A YOUNG PERSON CONVICTED AND SENTENCED TO 8 YEARS IMPRISONMENT WITH HARD LABOR FOR POSSESSION OF INDIAN HEMP


Background

On 12 July 2022, the High Court in Blantyre will review the decision of Senior Resident Magistrate Court, Masonga, who convicted and sentenced a 17-year-old young person to 8 years imprisonment with hard labour for the offence of possession of Indian Hemp without a license contrary to Regulation 4(a) of the Dangerous Drugs Regulations, as read with Section 19(1) of the Dangerous Drugs Act.

On 15 June 2022, the Applicant 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. He was sentenced to 8 years imprisonment with hard labour.

Grounds of review

At the hearing of the review, the Applicant will ask the Court to quash his conviction and set aside his sentence. He will 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.  He 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 lower court record indicates that the Applicant is 19 years old, but he will argue that he is 17 years old and should have been accorded the protection of a child under the Child Care Protection and Justice Act. 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.

John Mussa is being represented by Alexious Kamangila of Nicholls and Brookes alongside Chikondi Chijozi, Ruth Kaima, and Luntha Chimbwete of Southern Africa Litigation Centre and the Centre for Human Rights, Education Advice and Assistance.  For more details contact Alexious Kamangila on +265991591917, Ruth Kaima on +265888661043 and Chikondi Chijozi on +265888647847