Despite the scourge of wildlife poaching across Africa, the courts seldom see either poachers or smugglers in the dock. A recent trial followed by an appeal, however, has given members of the judiciary in Namibia a chance to express their concern about these crimes and to consider the prison term that should be imposed.
The story begins just like a movie: a police sergeant working the x-ray conveyor belt machine at Namibia’s Hosea Kutako International Airport suddenly spots something suspicious about two suitcases as they pass through the scan. She offloads them, and then calls their owners from the departure hall.
According to evidence heard in the matter of Xiaoling v S, however, things did not go quite according to plan for the smugglers after that.
When the officer, Wilhelmina Shatunenga, asked the two to open the cases so she could search inside they told her that their “boss”, who was still at the parking area, had the keys. No such person could be found at the parking area. Back at the suitcases, the police said they would have to break the locks in the presence of the senior police officer and the two owners of the cases.
In one suitcase they found 10 rhino horns and in the other four horns and a leopard skin. The owners of the suitcase kept saying the contents belonged to ‘the boss”. Still, however, no-one could find “the boss”. Then one of the police checked the men’s toilets. He found one door locked but there was no answer when he knocked on the door. He looked under the locked door but could see no feet inside, so he climbed onto the toilet in the cubicle next to it and peeped over, only to find that someone was sitting above the toilet, with his legs tucked up, hiding.
Some time later the fourth accused, who was the alleged mastermind behind the trip and the haul, was picked up at a hotel in Windhoek.
The four accused, all Chinese nationals, had travelled as a group from China to Zambia and then to Namibia. They had stayed at a hotel and CCTV footage of the rooms they hired showed them moving backwards and forwards between the rooms with sling bags over their shoulders. The footage also clearly showed them with the same two suitcases later opened by the police at the airport.
During a trial in the magistrates court, the four were not convicted on the charges of money laundering in relation to unlawful activities under the Prevention of Organised Crime Act because the court found these counts not proved beyond reasonable doubt. But their conviction on charges relating to the unlawful exportation of controlled wildlife products resulted in sentence of 14 years with some years suspended.
Both sides appealed; the high court was asked to reconsider conviction and sentence as well as the magistrate’s decision to discharge all four on the money laundering charges and the discharge of one of the four on all counts.
The two high court judges who considered the appeal, Judges Dinnah Usiku and Alfred Sibokela found there was clearly common purpose between all members of the group as well as a "very clear and credible unbroken chain of custody of the suitcases”. The magistrate was thus wrong not to have convicted all four on all the main counts. All the elements of the main counts such as "acquire, use, possession of or bringing into or taking out of the country” were proved beyond reasonable doubt.
The fact that the goods were found at the departure luggage conveyor belt ready to be flown out of the country showed that their plans had been finalized and were “past consummation”.
The sentences imposed by the magistrate had been carefully considered, contrary to the argument of defence counsel on appeal, said the judges.
They commented that it was common knowledge that rhinos were not a migratory or troublesome species. Unlike elephants and buffalo, they did not cross national borders or destroy the fields of communities along their path.
“Rhinos are peaceful animals that one will have no reason whatsoever to shoot at on this earth, or to possess their horn products apart from wanting to export and thereby trade therein. Their carcasses are left out to rot.” They were only found in national or private reserves and anyone wanting to see them had to go into these reserves.
It was thus the view of the court that someone found in possession of or dealing in rhino horns was intent on money laundering and bringing to its knees the tourism industry, which was the “engine” of Namibia’s economy and wellbeing.
Being found in possession of such products linked the accused to the “worst kind of economic setback” that a local person or visitor could "perpetrate".
“If this subtle onslaught is not tackled with an iron first, an irreparable damage to our wildlife is inevitable.”
The trial court had carefully considered each one’s personal circumstances and the time they had spent in custody during trial. But the court had also considered the seriousness of the offences, in particular the large number of rhino horns involved and the impact of their actions “on the wellbeing of our country’s overall economy” and the “lucrative tourism industry” in particular.
Revising the sentences in view of their findings on appeal, the two judges handed down prison terms of 20 years on all four of the accused, with five years suspended on the usual conditions.
There has been increasing concern in Namibia and in international wildlife circles that the Windhoek government was out of touch with the seriousness of the poaching problem related to the country's black rhino population. Repeated assurances that poaching was under control have been shown not to be accurate. This case, with its focus on the role of international smugglers and the source of their black rhino horn proven to be from the far north of Namibia, should open up the issue and allow activists more space to demand answers about what is clearly a very troubling situation.