Dar es Salaam. The Court of Appeal has ordered a fresh trial for a Liberian and Guinean serving 22-year jail sentences for trafficking 31 kilogrammes of cocaine worth about Sh1.2 billion over procedural irregularities during their trial. The two were sentenced in 2017... But the highest court in the land said the prosecution’s failure to amend and/or substitute the charge sheet after the discharge of three other people who were jointly charged with them was a fatal irregularity that caused miscarriage of justice.
Guinean Diaka Brama Kaba, 63, and Liberian Aboubakar Ndjane, 60, were arrested at the Julius Nyerere International Airport (JNIA) in June 2010 shortly after they stepped off a South African Airways plane.
Acting on a tip-off, the Anti-Drugs Task Force in Tanzania started trailing the two as they prepared to travel to Dar es Salaam from Lima, Peru.
The foreigners, masquerading as diplomats in a delegation to the Arusha-based International Criminal Tribunal for Rwanda (ICTR), carried luggage marked ‘DIPLOMATIC BAGS, THE REPUBLIC OF GUINEA CONAKRY NO 002,’ with an emblem reading ‘TRAVAIL JUSTICE SOLIDARITE,’ which concealed the drugs.
Three Ugandans - Sylivia Kaaya Namirembe, Farid Kisuule and Robinson Teise - were charged along with them in May 2015. But they were discharged after the DPP withdrew the charges against them seven months later.
However, the court proceeded with the trial against the two, without amending or substituting the charge sheet as required by the law.
“We are settled in our minds that, after discharging the three other accused persons, the DPP ought to have amended or substituted the charges to reflect the two remaining accused against whom the hearing proceeded.
“Alternatively, the trial court could have made an order for the amendment or substitution of the charge if it occurred to it that the said charge was defective either in substance or form,” said Justices Rehema Mkuye, Barke Sehel and Ignus Kitusi.
Section 234(1)(a) of the Criminal Procedure Act obliges courts to make an order for alteration of the charge by way of amendment, substation or addition of a new charge where it appears, at any stage of a trial, that the charge is defective.
After the alteration(s), the court is required to call on the accused person(s) to plead to the altered charge.
“It is clear that both the prosecution and the trial court failed to ensure that the charge was amended or substituted following the discharge of the three other accused persons.
“This was a fatal irregularity which occasioned miscarriage of justice, as it caused the appellants not to be accorded a fair trial,” they said.
Lawyers representing the foreigners - Wilson Ogunde, Juma Nassoro and Jeremiah Mtobesya - argued that the trial judge erred in convicting and sentencing the appellants while the charge was fatally defective for failure to amend it and read it over to their clients after the discharge of the other three accused.
Lady Justice Winfrida Korosso sentenced the duo to 22 years in jail in March 2017 and ordered them to pay Sh3.7 billion being three times the value of the value of the drugs they were seized with.
Upon their arrest, the duo told the police their journey had started in Trinidad via Panama, Brazil and South Africa before landing in Tanzania.
The suspects pleaded with the police not to open luggage, insisting they were diplomats with a crucial package to be delivered to the ICTR in Arusha.
But inquiry by the police with ICTR office in Arusha revealed the foreigners had no any connection with the international tribunal. ICTR said they were not aware of the delegation.
Anti-drugs police also found with the suspects two documents directing security officers at all the airports they passed through not to tamper with the “diplomatic” bags.
They had wrapped the high-purity cocaine in plastic and smeared them with coffee to avoid detection by scanning machines and mislead sniffer dogs at JNIA.