JUDICIARY OF TANZANIA: TWO POACHERS TO REMAIN BEHIND BARS FOR 20 YEARS

By Faustine Kapama-Judiciary

THE Court of Appeal has dismissed for lacking merits the appeal by two poachers, who were each sentenced to either pay 63m/-fine or jailed 20 years for unlawful possession one piece of elephant tusk, a government trophy, worth 31.5m/-.

Justices Gerald Ndika, Rehema Kerefu and Panterine Kente ruled against the poachers, Chande Ngayaga and Mohamed Rupembe, the appellants, after upholding their conviction of the offence they were charged with before the trial District Court of Liwale and confirmed by the High Court in the first appeal.

“We do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied that the evidence taken as a whole establishes that the prosecution's case against the appellants was proved beyond reasonable doubt,” they declared.

When determining the appeal, the justices noted an illegality of the alternative sentence imposed on the appellants by the trial court. Having considering the law, under which they were charged with they decided to reverse the same to 20 years imprisonment with no option of payment of fine.

The justices noted in a judgment delivered at Mtwara recently that the evidence on record that incriminated the appellants heavily and which was apparently used by the trial court to convict them was their own confession as indicated in their statements they recorded before the police.

Having thoroughly perused the said statements and the record of appeal, they immediately agreed with the prosecution that the same gave a full account on how the appellants committed the offence they were charged with.

According to the justices, it was also clear that when the said statements were tendered by prosecution witnesses during the trial, the appellants were asked by the trial court if they had any objection to their admissibility in evidence and both of them indicated that they did not have any objection.

“Had (the appellants) raised an objection at that stage, obviously, the trial court would have resorted to conduct an inquiry before deciding to admit or refuse to admit them in evidence. In the absence of an objection, the statements will be presumed to have been voluntarily made,” they said.

It was the considered view of the justices and, as rightly found by the trial court, that the appellants' statements provided overwhelming evidence of their participation in the commission of the offence.

In the said statements, they noted, both appellants clearly admitted that they were the ones who transported the trophy on January 20, 2018 for sale on a hired motorcycle and upon seeing the motor vehicle of the game reserve officers, they abandoned the trophy and the motorcycle and ran away.

“It is settled that an accused person who confesses to a crime is the best witness. Now, since in the current appeal the appellants were the best witnesses through their own confessions, we agree with (the prosecution) that other complaints they raised, have no merit,” the justices said.

During hearing of the appeal, the appellants had complained, among others, that their identification at the scene of the crime was not watertight, there was failure by the prosecution to establish the chain of custody and there were contradictions in prosecution witnesses.

The justices concluded that such complaints were not the basis of conviction of the appellants and, thus could not exonerate them from liability in the case.

“Consequently, looking at the totality of the evidence, we entertain no doubt that with the appellants' own confession and the available circumstances, the trial court properly found them to have committed the offence they were charged with,” they said.

Before penning down, the justices looked into the legality of the sentence imposed on the appellants by the trial court of paying 63m/- fine or to serve a term of 20 years in prison in default as per section 86(l)(2)(c)(ii) of the Wildlife Conservation Act (WCA), which, according to them, was improperly invoked.

Having considered the circumstances of the case, they were settled in their mind that the appellants being first offenders deserved a statutory minimum sentence of imprisonment for 20 year provided under section 60 (2) of the Economic and Organized Crime Control Act (EOCCA) as amended.

“(Since) the appellants (were) convicted of an economic offence, no option of fine is allowable and that the imprisonment cannot be levied in default of payment of a fine,” the justices said.

Given that position, they set aside the order issued by the trial court that each appellant should pay a fine of 63m/- or in default, serve twenty years imprisonment term.

“Consequently, and in substitution thereof, we order each appellant to serve twenty years imprisonment with effect from the date when they were sentenced by the trial court,” the justices declared.

It was alleged during the trial that on January 20, 2018 at Makata Village within Liwale District in Lindi Region, the appellants were found in possession of government trophy to wit, one piece of elephant tusk valued at 31.5m/, the property of the United Republic of Tanzania without permit.