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newsday - 12 days ago

A disappointing Supreme Court judgment

IN Latin they say Fiat justitia ruat caelum, meaning to say “Let justice be done though the heavens might fall”. It is a no brainer that on February 18, 2020, the heavens fell heavily upon animal lovers, environmentalists and other concerned citizens. Justice was ”probably” done. On the aforementioned date, the Supreme Court of Zimbabwe delivered a bombshell judgment which saw poachers jubilating. While the judgment is a welcome development for poachers and would-be poachers, environmentalists regard it as retrogressive. The Supreme Court judgment follows another far-reaching judgment by the High Court in the case of Mhango and Others versus the State HMA 33/19. In the latter decision, the High Court held that in terms of the Parks and Wildlife Act, Chapter 20:14 (hereinafter the Act), pangolin-related convictions do not call for the mandatory nine years’ imprisonment sentence. Facts surrounding the case The case involved three men who were arrested for possessing a live pangolin. They were arrested after the police received a tip-off that there were three people selling a pangolin. The police swiftly reacted and one of the three was resultantly shot with an AK-47 assault rifle after foolishly trying to escape. I was privileged to have prosecuted the case in the magistrates court during my days with the National Prosecuting Authority. After a heavily contested trial, the trio was convicted and each sentenced to nine years’ imprisonment. The trio, which was represented by the now Justice Isaac Muzenda, Yolanda Chandata and Charles Ndlovu, appealed against both the conviction and sentence. The High Court dismissed the appeal against conviction and upheld the appeal against sentence. It was then that it was clarified that pangolin-related convictions do not warrant nine years’ imprisonment. The High Court went on to quash the nine years’ imprisonment and substituted it with three years. Aggrieved by the High Court sentence, they appealed to the Supreme Court. This is when the Supreme Court delivered a thunderclap. It upheld the appeal and ordered that the matter be remitted to the High Court for resentencing. The Supreme Court hinted that a non-custodial sentence be imposed. The case is currently awaiting resentencing by the High Court. The High Court judgment Although the High Court judgment has its own pitfalls, I commend it for being one of the best judgments to be handed down in modern-day Zimbabwe. What I applaud is the fact that the two judges who presided over the case did not just agree with each other. They wrote two stand-alone judgments. This is unusual in present-day jurisprudence of Zimbabwe. On page 13 of the cyclostyled judgment, Justice Joseph Mafusire introduced his own judgment as following: “I have had the privilege of reading the judgment of my brother, Mawadze J. It is well written. The facts of the issues are well-captured and thoroughly canvassed. I agree entirely with the findings and conclusion therein. But I cannot resist the temptation of adding my own voice”. Such judgments should be emulated. It is also hoped that in future, we will also see some dissenting judgments in our courts. They are necessarily for the development of jurisprudence. Since time immemorial, persons who were convicted for hunting, selling or possessing pangolins were sentenced to nine years imprisonment. It is also known that High Court judges had been (on automatic review) confirming nine years imprisonment sentences for pangolin convictions. The Mhango case is arguably the first pangolin case to be appealed in Zimbabwe. The rest of the precedents had been in respect of bail applications. In many of those cases, High Court judges refused to grant bail to pangolin poachers on the reasoning that the offence was serious in that it invites nine years imprisonment. The argument that possessing a pangolin does not warrant nine years’ imprisonment started in the magistrates’ court. Lengthy submissions were made in the trial court and I, on behalf of the State, was dared to produce a statutory instrument (SI) as stated in section 128 of the Act. As correctly remarked in the High Court’s judgment, I was unable to produce or vouch for the existence of the required statutory instrument. My sister, Mukai Mutumhe, who later appeared in the High Court, also failed to produce the SI. She conceded and it is now settled that this SI is non-existent. The trial magistrate was convinced to impose nine years’ imprisonment as a result of the reasons earlier mentioned. After a thorough analysis of the judgment, I came to the conclusion that it was to a greater extent correct for the High Court to make a finding that nine years’ imprisonment must not be imposed in pangolin-related convictions. It is, however, hoped that the Environment and Justice ministers would timeously push for the needed statutory instrument if at all the pangolin and other nearly extinct animals are to be conserved. The Act itself is archaic. It needs a revamp. The Supreme Court judgment The Supreme Court relayed the matter to the High Court for “an appropriate sentence” to be imposed. A reading of the High Court’s judgment shows that mitigating and aggravating factors regarding the case were well canvassed. Mitigating factors are those which persuade a court to impose a lenient sentence while aggravating factors call for a severe sentence. Before the High Court imposed three years imprisonment, it deliberated well on these sentencing aspects. What then is an appropriate sentence in this case? A fine? What is worrying is not the sentence to be imposed in this particular case. The pangolin is the world’s most trafficked animal. Courts must be reminded that Zimbabwe is a signatory to Convention on International Trade in Endangered Species of Wild Fauna and Flora and United Nations Convention on Biological Diversity. These are international instruments aimed at preserving wildlife. Research shows that poachers usually sell this animal for around US$5 000. Advocate Ever Chinoda, the executive director of Sofa, commented that: “The intrinsic value of animals must always be considered whenever judicial decisions are made. No amount of money or fine can compensate any lost specie, what we need are deterrent penalties ” Proceed Manatsa, a law lecturer and an environmentalist, described the Supreme Court judgment as “a retrogressive step into the future”. Nancy Makuvise a former public prosecutor and senior legal counsel with Sofa had this to say: “For the world’s most trafficked animal, courts should pass sentences that deter would be offenders”. It goes without saying that the Supreme Court judgment in Mhango s case is no joy for environmentalists. Conclusion Pangolins are only found in few African and Asian countries. It is a fact that they are on the verge of extinction. Zimbabwe is privileged to be one of the few countries remaining with pangolins. Most people have never seen this rare animal. I personally first knew of the existence of this scaly ant eater through the 1997 Zimbabwean $2 coin. Why did the government choose to use this animal as an emblem back then? I’ve said it before, but I will repeat that “a pangolin is an animal more special than other animals in Zimbabwe”. Any person who contributes to its extinction ought to be locked behind bars. For this reason, I perceive the Supreme Court judgment as a disappointment!  Fidelicy Nyamukondiwa writes here in his personal capacity. The post A disappointing Supreme Court judgment appeared first on NewsDay Zimbabwe.

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