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    Thursday, 19 September 2019

    High Court removes mandatory 9 year sentence for possesing pangolins



    •  9-year sentence for pangolins quashed

    MIRROR REPORTER

    MASVINGO – In a landmark ruling made by two Judges at the High Court in Masvingo, the mandatory nine-year jail term for anyone found in illegal possession of a pangolin has been quashed and replaced with a three year sentence or a level 8 fine of $500.
    Justice Garainesu Mawadze and Justice Joseph Mafusire concurred in their ruling made a few weeks ago that suspects have all along been improperly sentenced to nine years in jail for possessing pangolins.
    They said that there was a wrong reading of the law hence wrong sentencing of suspects. They said under the law, a suspect is only given the mandatory nine-year sentence if the case involves the killing of a rhinoceros.
    Any other specially protected animal attracts three years or $500.
    The ruling is likely to open floodgates as there are scores of people around the country’s prisons who have been sentenced to nine years for possessing pangolins.
    Justices Mawadze and Mafusire made the ruling when they heard an appeal brought before them by Tatenda Mhango, Brighton Ngwenyama and Kudzai Ruvangu Shava who were trapped by the Police while trying to sell a pangolin at Bhuka near Masvingo for $5 000.
    One of the three ...... is a school teacher.
    The three who were convicted and sentenced to the mandatory nine years by Masvingo Magistrate ......... appealed to the High Court.
    The lawyers of the three Charles Ndlovu and Y....Chandata argued that the pangolin is indeed one of the 24 specially protected animals in terms of the Sixth Schedule to the Parks and Wildlife Act and it’s on number 6 on that list.
    Under Section 45 (1)(b) and 45(2) anyone who commits an offence by being found in possession of or kills the specially protected animal is liable to three years in jail or $500. However, Section 128 of the same Act says notwithstanding what any other section in the Act anyone found to have committed the crime involving the specially protected animals is liable to a mandatory sentence of nine years.
    The judges however, noted that for an animal to qualify under section 128, it must be specifically mentioned in the section as is with the rhinoceros. If it not mentioned specifically then it must be contained in a statutory instrument produced by the relevant Minister.
    The judges noted that the Statutory instrument listing the pangolin as an animal that is more special than the specially protected animals and therefore falling under Section 28 in terms of sentencing does not exist.
    The Judges asked the State to produce the Statutory instrument and it was not found. They also noted the magistrate was also notified of the absence of the Statutory instrument by the Minister but still went on to impose the mandatory sentence.
    “It is therefore my considered view that as the law stands hunting or possession of a pangolin does not warrant the special penalty provided for in Section 128 of the Act until the Minister specifies the pangolin by name or in the Statutory Instrument. This means therefore that in the absence of such a Statutory Instrument the sentence of nine years imposed by the court a quo is incompetent and should be set aside,” read Justice Mawadze’s ruling.
    “Parliament left it to the Minister, through subsidiary legislation, to identify any such other animal that might deserve extra protection as the rhinoceros. Whether by design or dereliction of duty , the Minister we were told, has not put such Statutory instrument. So the nine year penalty of Section 128 could not possibly apply to the appellants,” said Justice Mafusire.#Masvingo Mirror#
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