Two men arrested for trafficking in dangerous narcotics and unlawful possession of dangerous drugs have told the Harare Magistrates Court that their arrested is illegal as crystal meth is not a classified drug in Zimbabwe.
Prince Samuriwo, 35, and Humphrey Banda, 44, were arrested after being found with 83 grams of crystal meth.
The duo’s legal team of Admire Rubaya and Malvin Mapako argued on Thursday before magistrate Apollonia Marutya that crystal meth in not listed in the Dangerous Drugs Act, and that their clients’ arrest was illegal.
“The state alleges that crystal methamphetamine that the accused were allegedly found in possession of is a dangerous drug yet there is no such drug listed in the relevant schedule to the Dangerous Drugs Act [Chapter 15:02],” Rubaya said.
Rubaya asserted that public outcry or political interference should not be considered sufficient grounds to deem something as an offence.
Rubaya argued that an act of parliament is necessary to establish such offenses, and in the absence of such legislation, the charges cannot be upheld. Rubaya further contended that upon reviewing the Dangerous Drugs Act, it becomes evident that there is no specific drug referred to as crystal methamphetamine, commonly known as crystal meth or by its street name, Mutoriro.
“A drug does not become a dangerous drug simply because the general populace, the State and or politicians want it to be treated as a dangerous drug whose alleged possession is punishable in terms of the criminal law,” Rubaya went on.
“It is not the general unhappiness of the law enforcement agencies, politicians or the society at large that prescribe possession of or dealing in crystal methamphetamine but positive legislative enactment.
“In the absence of crystal methamphetamine being listed as a dangerous drug in the schedule, no offence can arise in relation to anyone alleged to have been found in possession of crystal methamphetamine in Zimbabwe.”
The defence argued before the court that while there is a drug that bears a resemblance to crystal methamphetamine – methylenedioxymethamphetamine – the two drugs are distinct from each other and, therefore, an individual cannot be charged under the assumption that they are identical substances.
“The Dangerous Drugs Act does not indicate that methylenedioxymethamphetamine is also known as crystal methamphetamine. Methylenedioxymethamphetamine and methamphetamine might be belonging to the family of drugs called phenethylamines and under the generic name amphetamines but these drugs are different drugs. The two have divergent effects and produce differing neurochemical and behavioural responses in human beings,” said Rubaya.
“The two drugs have different molecular structures, have different scientific names. Methamphetamine is also known as nadimethylphenethylamine whilst methylenedioxymethamphetamine is known scientifically as nadimethylmethylenedioxyphenethylamine. Therefore, these two drugs are scientifically different.
“It is submitted that if crystal meth is not a scheduled drug, then the conduct forming the basis of the charge being preferred against the accused person is not recognised in our law as a crime.
“Therefore, the accused’s alleged type of conduct being allegedly found with sachets of crystal meth is not proscribed by the law in Zimbabwe. Once the court finds that crystal meth is not a scheduled drug in terms of the Dangerous Drugs Act, then the accused cannot possibly be placed on remand nor convicted of conduct which is not recognised by the Zimbabwe law as a crime.
“On that score this court has no legal basis to convict an accused person because what is being alleged by the State is not an offence. There is need for an express designation of crystal methamphetamine as a dangerous drug in terms of the relevant act of parliament.”
During cross-examination, Shelton Gambiza, an officer from the Zimbabwe Anti-Corruption Commission (ZACC) acknowledged that crystal methamphetamine was not included in the list of dangerous drugs specified by the Dangerous Drugs Act.
When questioned about the scientific aspects of the drug, Gambiza deferred to the expert police officer who was supposedly tasked with scientifically examining the confiscated substances.
The hearing was adjourned to November 21.