By Mandy Pondani:
The Supreme Court of Appeal sitting in Mzuzu on Monday overturned a High Court ruling fining brothers Chancy and Patrick Kaunda a combined K5 million for being found in possession of 781 pieces of ivory worth K4.3 billion.
The court, comprising justices of Appeal Edward Twea, Lovemore Chikopa and Dunstan Mwaungulu, has sentenced the convicts to eight years in jail with hard labour.
Delivering its ruling read by Chikopa, the Supreme Court of Appeal argued that the High Court erred in imposing the fine that was less than the value of the ivory.
The judges have ordered that the fine be refunded to the Kaundas when they start serving the sentence.
“If the High Court found that the convicts had no capacity to pay such amount of fine, the way to go was not to impose a fine less than one prescribed by Section 110 of the National Parks and Wild Life Act but a custodial sentence,” the ruling reads in part.Advertisement
During the trial, the government and wildlife experts told the court that the specimen was valued at K4.3 billion.
But, in his July 28 2015 ruling, High Court Judge Dindiswayo Madise argued that the combined K5 million fine was arrived at after considering that the convicts could not afford any amount in excess of the actual value of the ivory.
Director of Public Prosecutions (DPP) office challenged the judge’s decision by appealing to the Supreme Court.
While throwing out the DPP’s plea to forfeit the vehicle which was used in committing the crime to the government, the judges, however, upheld the decision by the High Court in which it ordered the burning of the 2.6 tonnes of ivory.
In an interesting twist to events, however, Justice Mwaungulu said he agreed with the two judges in respect of the conclusion of the judgement and not on the legal grounds.
He ha said he would deliver his separate judgement in due course.
Reacting to the ruling, lawyer representing the convicts, George Kadzipatike, said he respected the court’s decision and his clients would comply.
“The High Court had proceeded on the premise that Section 110 of the National Parks and Wild Life Act is unconstitutional as it deprives the court of its sentencing discretion. Now since the Supreme Court has decided otherwise, we respect that decision,” he said.
In an interview, Parks and Wildlife Director, Brighton Kumchedwa, said the landmark ruling sends signals to the wider world on the country’s seriousness in combating wildlife crimes.
“We are overwhelmed. We did not expect the decision because the crime took place in 2013 when our legislation was not as stiff as it now,” he said.
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