Suspicious ruling lands magistrate in trouble

Tabani Mpofu

A Harare magistrate who last year fined a Venezuelan $700 for carrying 5kg cocaine worth US$469 000 in her luggage as she flew into Harare from Brazil, has been arrested for criminal abuse of office as graft-busters move up the ladder into the courts.

In a declaratory ruling on appeal, the High Court thought five years jail was the appropriate sentence although the Venezuelan had already been deported by that time, there being no additional grounds to hold her.

But that recent ruling raised suspicions over why the magistrate was so lenient.

Normally, even possession of a few grammes of cocaine attracts a jail term and the judge noted there was no legal precedent for sentencing someone with such a huge quantity of dangerous drugs.

Magistrate Morgan Nemadire tried Venezuelan Delcy Deymar Rodriguez Guererro who had been arrested for possessing 5kg cocaine and with the overwhelming evidence convicted her on the alternative more minor charge, rather than the main more serious charge, before imposing a sentence of a small fine.

Nemadire’s arrest follows investigations by the Special Anti-Corruption Unit (Sacu) with the assistance of the police.

It also comes at a time when the cogs of the justice delivery are under scrutiny after a senior prosecutor, Tapiwa Kasema, last week consented to the granting of bail to four members of a gang suspected to be the biggest robbers in Zimbabwean history.

That consent prompted police to arrest him.

Yesterday, the head of Sacu Mr Tabani Mpofu confirmed the arrest of the magistrate but could not divulge more details concerning the case.

Nemadire is expected to appear in court soon.

Aggrieved by the sentencing leniency for Guererro, the Prosecutor-General’s Office then appealed to the High Court against both the conviction on the minor charge rather than the main chare and against the sentence, saying it was too lenient even for the lesser charge.

Guerrro, a native of Venezuela, who was deported to her home country, should have served five years in prison for possession of cocaine valued at $469 000 after the High Court quashed a lower court’s sentence in a judgment delivered recently and made the conviction on the main charge.

Justice Joseph Musakwa observed that the trial court was too lenient with Guererro and ruled that a declarator on the appropriate sentence was called for even though she had been deported.

“In that respect, a sentence of five years’ imprisonment should have been imposed,” said Justice Musakwa.

“The verdict of the lower court is set aside and substituted with . .. guilty of the main charge and not guilty of the alternative charge; the sentence is set aside and substituted with the following . . . five years’ imprisonment.”

Justice Musakwa bemoaned a dearth of comparative legal authorities on cocaine-related matters from the country’s jurisdiction. He said the few cases available pale into insignificance when compared with the matter involving the Venezuelan national.

Usually, people found in possession of small quantities of cocaine ranging from 1,7 grammes to 10 grammes are sent to jail without the option of a fine.

The trial court was lenient with Guererro on the grounds that it was expensive to keep foreigners in local prisons, adding that she had complained of ill-health. This was despite the fact that the prosecution in the trial court had submitted that a fine would trivialise the gravity of the offence and would be a mockery to the justice delivery system.

The trial court heard that on October 18, 2018, police on duty at Robert Gabriel Mugabe International Airport received a tip-off that Guererro was travelling to Harare from Brazil and was suspected to be carrying dangerous drugs.

When Guererro disembarked from her flight, she proceeded to the clearance counter in the arrivals hall to clear her passport. She was arrested as she was getting her passport stamped. – Herald