Jerome Kanyika’s Defence Counsel quizzes ZAMRA witness

Friday, 16th August, 2024

Mufulira Surbordinate Court

Ruling –

The court was called to order at 08:45 hours for the ruling on the Preliminary Issue (PI) raised by Defence Counsel in the application Defence Counsel had indicated that the evidence on record already confirmed that the importer of the medicines which were the subject of the trial was Zango Healthcare Ltd, the seizure form that was submitted as ID1 was bearing the name ZANGO Healthcare Ltd and Zambia Medicines and Regulatory Authority (ZAMRA).

The FIRST WITNESS, who is the inspector that seized the commodities, confirmed with the court that the medicines that led to the arresting of Mr. Jerome Kanyika was being imported by Zango Healthcare Ltd.

Defence Counsel reminded the court that Limited Companies are regarded as persons at law, and they have their own separate legal entities that can sue or be sued in their name and therefore the accused Mr. Jerome Kanyika was a wrong party before the court.

Defence Counsel reiterated that continuing the trail with a wrong party was a grave injustice to Mr. Kanyika.

The court was reminded of the sacred principle in company law that separates natural persons from artificial persons like companies and finally, the court was referred to the evidence on record were ZAMRA confirmed that indeed the medicines that were subject of trail were for the entity Zango Healthcare Limited which the accused works for and as such the accused Mr. Jerome Kanyika was a wrong party before the court, and the court was urged to dismiss the matter as having a wrong person before it was a substantial departure from procedure that can not be cured under the circumstances.

The prosecution responded, arguing that companies work through human agents, and as such, the director who is found at the scene can be held liable.

Defence Counsel replied, reminding the court that there is no law that makes employees or agents of the company directly responsible unless it is provided clearly.

Ruling

The court ruled that giving such a ruling and attending to the PI would be premature as the onus lies on the prosecution to prove beyond reasonable doubt.

Agreeing with the prosecution, the court ruled that since the Companies Act through human agents, the application lacked merit, and it was dismissed and proceeded to trial.

Continuation of Trial

Ms. Mtonga Towela,
ZAMRA inspector working under Mr. Paul Banda, the first witness.

Despite Madam Mtonga working under the supervision of Mr. BANDA, further testified that all her actions were directed by her superior (Mr. Banda).

Her testimony differred from Mr. Banda as she testified that whenever ZAMRA inspectors consficate or seize the medicines, they have to hand them over to an arresting officer who keeps them.

It was Madam Mtonga’s testimony that after the seizure of the drugs in Mufurila, Copperbelt Province, they left everything, and her work was done.

And questioned on whether or not ZAMRA gives pre approvals, it was Madam Mtonga’s testimony that indeed ZAMRA gives pre approval but added that she does not know what pre approvals are as there were phased out when she was joining the institution in 2018.

Asked on whether or not the DG is the final authority granting authority, Madam Mtonga testified that the ZAMRA DG had final say but pressed whether herself as an inspector can change or refuse to follow an instruction given by the DG, she indicated that she can go against the decision of the DG.

Below is a Verbatim Report

Counsel Daniel Mwaba
Question: Madam Mtonga, you were telling this court that you were instructed to seize the drugs, is it true?

Answer: Yes, Your Worship.

Question: Who instructed you to seize the drugs?

Answer: AS I SAID, I DIDN’T COME ALONE.

Question: Madam Mtonga, please tell this court who instructed you to seize those drugs?

The court reminded Ms. Mtonga that the questions Defence Counsel, Mr. Mwaba was asking were on behalf of the court, and her answer should be directed to the court.

The magistrate noted that if she continued being rude in responding, she was being rude to the court.

Witness apologises and the cross examination continues.

Question: Please, tell this court who instructed you to seize these drugs?

Answer: My supervisor, Mr. Paul Banda.

Question:are you aware that the DG facilitated the drugs and the DG has the power to give permits according to the act

Answer: yes I know

Question: if the DG asked you to do something are you going to do it or not?

Answer: am not going to do it as it against the law.

Question: but you work on behalf of the DG

Answer: yes

Question: From the time the goods were seized, is this the first time for you to see them?

Answer: Yes
Question: Where are they?

Answer: They are here.

Question: How do you know that there are here?

Answer: Because I was told, and we were told to go see them here.
Question: Who was in possession of drugs when you seized them?

Answer: There were with the Drug Enforcement Commission (DEC).

Question: When you seized the goods, where did you leave them? In whose custody were the seized drugs supposed to be deposited?

Answer: They are supposed to remain with the arresting officer.

Question: Were you aware that these medicines were taken to Lusaka?

Answer: No, I am not aware.

Question: So, you just seized the medicines and left them?

Answer: Yes, my assignment was done it the evidence before this court your work as an inspector were done when you left?
Answer: No, I didn’t say my work was done, I said my assignment was done.

Question: Did you know what happened to the medicines that you seized?

Answer: No
Question: So, you are hearing about those medicines today?
Answer: Yes
Question: Does ZAMRA give authorisations to letters which are like go ahead we shall give you the licence?

Answer: they used to give, but they phased them out when I was joining.

Question: Do you know what those letters or pre approvals meant?
Answer: I don’t know them because they phased them out just when I was joining.

Question:You said that Jerome is your client, is he a client as Jerome Kanyika or as Zango Healthcare Limited?

The witness hesitates
The court: Witness, answer the question. if you are not clear, ask so that the question is repeated.

Answer: Zango Healthcare Ltd
Question: Confirm to this court that the medicines you seized belonged to Zango Healthcare Ltd?

Witness hesitates again.

Answer: Yes, but Mr. Kanyika is a director for Zango Healthcare Ltd.

Counsel: Please just answer the questions and don’t include the accused in everything you are saying
Question:Who does ZAMRA issue the permits to?
Answer: Members of the public and people of Zambia generally
Question: Does ZAMRA issue permit’s to ordinary members of the public?

Answer: Yes.

Question:Is it your evidence to this court that ZAMRA issues licences to members of the public without any conditions?
Answer: Yes
Counsel michelle mwiinga
Question: When you came madam mtonga,were you introduced to the owners of the drugs?
Answer: Yes
Question: Is it the evidence before this court that you were advised to seize the drugs?
Answer: Yes
Question: Can you also confirm to this court that the decision to seize the products was not your decision
Answer: Yes, I can confirm it wasn’t my decision.

Question: Is it your evidence before this court that import permits to members of the public are for small quantities?

Answer: Yes
Question: And you can agree with me that the consignment in question before this court was a bulk purchase?

Answer: Yes
Question: Confirm that it was your evidence that ZAMRA used to give pre approvals?

Answer: Yes

Question: Have you presented before this court any memo to show that pre approvals have been removed/
Answer: No.

Question: Are you aware the drugs in question were ordered by Zango on behalf o the Ministry of Health (MoH)?

ANSWER: AM NOT AWARE.

Question: Could it be be because you were not involved at your level?

Answer: Yes.

Trial continues with a third witness

‘s Defence Counsel quizzes ZAMRA witness