Pubdate: Thu, 04 Mar 2004
Source: Post, The (Zambia)
Copyright: Post Newspapers 2004
Contact:  http://www.zamnet.zm/zamnet/post/
Details: http://www.mapinc.org/media/3160
Author: Noel Sichalwe

I'M EMBARASSED, CRIES CHILESHE

Lusaka

Self-confessed cannabis grower and trafficker Sidney Chileshe
yesterday told Lusaka magistrate Victoria Mushibwe he was embarassed.

Chileshe, a former Zambia Export Growers Association (ZEGA) chairman,
was fined K5.1 million in default 32 months simple imprisonment by
magistrate Mushibwe after pleading guilty to trafficking and
cultivating cannabis valued at K4.5 billion at his Makeni farm in Lusaka.

And Law Association of Zambia (LAZ) president Michael said the ruling
was in accordance with the law but would have to peruse the case
records to make a conclusive position on the matter.

However, Chileshe still awaits to know whether or not his farm would
be forfeited to the state or other interested companies in a ruling
reserved for May 4.

According to the facts of the case, Drug Enforcement Commission (DEC)
prosecutions lawyer Lufwendo Saboi said on February 23, this year DEC
officers received information that Chileshe was cultivating and
trafficking in controlled drugs in Makeni on a farm at SAC
Agricultural Company.

Saboi said acting on the information, some officers went to the farm
and introduced themselves to Chileshe after which they executed a
search warrant.

"During the search of the farm, some plants suspected to be marijuana
were found growing in a green house situated at his farm," Saboi said.

"These plants were uprooted by the officers with the help of some farm
workers. The searching officers also found already uprooted plants of
marijuana in the cold room next to the accused's office. A further
search was extended to his house where a firearm serial number 504704
and 18 rounds of ammunition were discovered in his bedroom. The
firearm and the ammunition had no licence."

Saboi said Chileshe was then arrested and had under the warn and
caution statement admitted to the drug and fire arm charges while the
cannabis was seized.

In a mitigation presented by lawyer Kelvin Bwalya, Chileshe said the
court had his life in its hands.

Bwalya said in most common law countries like Zambia, the courts were
allowed to met out punishment appropriate to the offence.

He said although the legislature might stipulate the maximum sentence,
the practice in Zambia was that it was the discretion of the court in
imposing a sentence.

Bwalya said it was in rare circumstances that the courts were obliged
to impose a particular sentence to convict those that had pleaded guilty.

"This man has saved a lot of time for this court and also saved a lot
of money for the state," Bwalya said. "Time and money can now be put
to other use. Tax payers' money has been saved and all this saving
must be an added credit to a convict before this court. Since my
client is a first offender, the principle in law is that he should not
be denied leniency in the hope that severe sentence is not necessary
and that this will teach the convict a lesson."

He said the situation would have been otherwise if Chileshe was a
habitual offender.

Bwalya said Chileshe was a respected Zambian and businessman, a
principled man, married with four children who were all in school.

"Until the events of this court, the convict was chairman of three
boards in different companies. He also sat as a member on four other
boards of different organisations. On his own motion, the convict
dictated letters of resignation on all the seven boards immediately
these allegations were levelled against him. He did not want to
embarrass his organisation or people he worked with and he took full
responsibility."

Bwalya said Chileshe's reputation had been seriously damaged by the
publicity of the case and that after the events of that case, he would
suffer personal problems to come to terms with the situation.

"I am instructed to inform the court that my client unreservedly
apologises to this court, family and friends and all the people he
mingles with for this unfortunate circumstance and from the bottom of
his heart, he cries out for your mercy and leniency," Bwalya said.

He said the court should look at the factors surrounding the cannabis
which were recorded in a warn and caution statement.

Bwalya said Chileshe's farm had four green houses and that the case
before the court happened in the fourth green house, which was
infected with disease, the roses had to be destroyed and the area was
quarantined.

However, at this stage Drug Enforcement Commission (DEC) prosecutions
lawyer Lufwendo Saboi objected to the line of mitigation saying Bwalya
was giving evidence when his client had pleaded guilty.

Bwalya then said Chileshe had not visited the green house since June
2003.

"Despite all these circumstances, my client has borne the blunt of
this embarrassment," he said.

Bwalya said the manner in which the drugs were handled and weighed by
DEC officers left much to be desired.

He said looking at the totality of the circumstances, it demanded that
Chileshe should be given a benefit of doubt and that he should be
given the option of a fine.

"We appeal to the court to exercise its discretion and allow the
convict to suffer a fine and get on with his life," said Bwalya.

Making a ruling, magistrate Mushibwe said Chileshe deserved leniency
after taking into account that he was a first offender and the
mitigation given.

Magistrate Mushibwe in the first count of trafficking in psychotropic
substances fined Chileshe K300,000 in default six months simple
imprisonment.

She also fined Chileshe in the second count of cultivating over 5,987
kilogrammes of marijuana K4 million in default seven months simple
imprisonment.

Magistrate Mushibwe further in the third count of illegal possession
of a firearm, a revolver, serial number 504704 fined Chileshe K500,000
in default eight months simple imprisonment.

She also fined Chileshe in the last count of illegal possession of 18
rounds of ammunition without a licence or authority K300,000 in
default six months imprisonment.

Saboi applied to have the drugs, the firearm and ammunition forfeited
to the state under Section 54(1)(b) of the firearm Act.

He also applied that farm number 9107 in Makeni be forfeited to the
state pursuant to section 34 of the Narcotic and Psychotropic
Substance Act Cap 96 of the Laws of Zambia.

Saboi said the Act stated that the court should order that any movable
or immovable property on which such offences were committed be
forfeited to the state.

"It is mandatory upon conviction to forfeit such property to the
state," Saboi said. "I am mindful of the provision under section 34(2)
of Cap 96 that the order to be made by the court is a conditional one
to enable the third party claimants to claim within three months."

However, in response, Bwalya said there were third parties involved in
Chileshe's farm valued at over US $800,000 and that among them were
Development Bank of Zambia (DBZ) and two other companies.

He said there was need to engage third parties who were not in court
and whose interests were not looked at.

"Equity demands that the interested parties be heard," he
said.

Bwalya also said Chileshe should be allowed to discuss with the third
parties over the forfeiture of his farm to the state.

Ruling over the forfeiture of the farm was set for May 4.

In an interview after the case, Saboi said he was studying the ruling
to assess the possibilities of appealing.

Bwalya said his client was happy with the ruling.

"Given a choice between freedom and property, I will definitely choose
freedom. My client is very happy with this ruling," he said.

There was jubilation by relatives and friends who were at the court
when Chileshe narrowly escaped the jail sentence.

But Chileshe who was sorrounded by relatives refused to comment on his
sentence. 
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