Jerome Kanyika’s Defence Counsel Quizzes ZAMRA Witness

Trial continued in the matter in which renowned pharmacist Jerome Kanyika and two others have been charged with illegal importation of medical drugs in the Mufulira Magistrate Court.

Testimonies and cross examinations have punctuated the recent court sessions.

A ruling was earlier made on the Preliminary Issue (PI) raised by Defense Counsel in which it was 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 arrest of Mr.Kanyika were 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.

He 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 cannot 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.

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 preceded to trial.

Continuation of trial.

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, You’re 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 permits 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 because you were not involved at your level?

Answer: Yes.

Trial continued with a third witness.

Counsel Daniel Mwaba.

Question: Mr. Mweemba, do you know that the medicines that you talked about have already been paid for as indicated on the import permit?

Answer: No, I am not aware, Sir.

The witness advised to address the court properly.

Question: Mr Mweemba, you said you work for the licencing department, are you telling this court that Zango Healthcare Limited applied for the import permit?

Answer: I found something, some documents on that.

Question: Mr. Mweemba, confirm that Zango Healthcare applied for an import permit for the medicines in question?

Answer: I cannot confirm.

Question: Let us talk about the seizure forms given to you by the supervisor, Mr DON Mwangana.

Answer: Mr. Mwangana asked you to check if whether there was an import permit issued to Zango Healthcare Ltd.

Question: Confirm to this court that you have not told these court findings of your verification exercise?

Answer: Yes, I have not told the court.

Question: In your verifications, were you were checking if Zango Healthcare Ltd had an import permit?

Answer: Yes.

Question: Did you, by any chance, check if Mr Jerome Kanyika was issued with an import permit?

Answer: Yes, I checked out of curiosity.

Question: Do you know about ZAMRA pre approvals or does ZAMRA give pre approvals or informal authorisations?

Answer: Yes, ZAMRA gives those

Question: You are a licensing officer. Do you sometimes communicate to applicants that everything is fine, we are just waiting for the Director General to approve?

Answer: Yes, we do communicate.

Question: So, if the DG communicated to the client, whom you assured of waiting for the DG’s approval that they can go ahead with the pharmaceutical activity they want to do, they will be given the licence later, can you reverse what the DG has said?

Answer: No, I cannot reverse the decision of the DG.

Question: What system are you using?

Answer: We are using the online system, but it has exceptions for the Ministry of Health (MoH) and Zambia (ZAMMSA).

Question: Are you aware that the consignment in question is for the MoH?

Answer: No, I didn’t know.

Question: And do you confirm that the medicines in question were for MoH AND WERE SUBJECTED to scrutiny. Is this an exception?

Answer: I didn’t know.

Question: Did you care to find out whether these medicines were under the said exceptions as you have indicated?

Answer: No I did not.

Counsel Michelle Mwiinga.

Question: You said you carried the verification exercise, have you brought documentary proof to this court. the documents as verifications?

Answer: No, I have not brought the documents?

Question: How long can the process take to issue a permit or licence, can it take 14 days?

Answer: Yes.

Question: Does this process go beyond 14 days?

Answer: Yes, it may go beyond that when we seek further information, but otherwise, it takes 14 days under normal circumstances.

Question: Can you confirm that your online system sometimes goes down?

Answer: Yes

Question: You agree with me that there was an emergency situation?

Answer: I don’t know.

Question: Can you confirm that ZAMRA assists in improving medicines availability in emergency situations?

Answer: Yes

Question: Are you aware that in emergency situations, waivers exist?

Answer: No.

Question: Is it your evidence before this court that ZAMRA ISSUES pre approvals?

ANSWER: Yes, ZAMRA issues pre-approvals before the licences are issued.

Question: Are you aware that Kasumbalesa and Mukambo border posts were not open until Zango Healthcare Ltd applied?

Answer: I am not aware.

Question: On the online system, which is the portal, used if the port of entry is not available, what can an applicant use?

Answer: The applicant should enter the port if they want to use it later.

Question: Is it a glitch in the system if the name doesn’t appear?

Answer: Yes, if it doesn’t appear.

Question: Confirm for this court that issuance of certificates is squarely the duty of the DG?

Answer: Yes.

Trial Continues…