Self-confessed poachers acquitted after prosecution’s mistake

29 August 2019 · Carmel Rickard

Two Tanzanian poachers, who admitted they shot two animals in a national park, have been acquitted and set free on a second appeal. The country’s chief justice and two other appeal court judges found the prosecution had made crucial mistakes in the trial of the two men. The poachers had initially pleaded guilty to tracking and killing an impala and a kudu in the Ruaha National Park.

Read Erneo Kidilo & Another vs Republic (Criminal Appeal No.206 of 2017) [2019] TZCA 253; (21 August 2019) (PDF):

Just as judges from many African countries were about to begin a training course on environmental law in Stellenbosch, something significant was happening in Tanzania: Chief Justice Ibrahim Hamis Juma, with two other appeal court justices, were delivering their decision in a poaching case.

As cases involving environmental law are uncommon in the region served by Judicial Institute for Africa (Jifa), this appeal - whichever way it went - promised to be of great interest.

The three judges were considering the appeal of Erneo Kidilo and Matatizo Mkenza, both of whom had originally pleaded guilty to the three counts they faced.

The first was unlawful entry into the Ruaha national park, contrary to the National Parks Act, the second was being found in unlawful possession of ‘government trophies’ contrary to the Wildlife Conservation Act read with the Economic and Organised Crime Control Act. The final charge was of unlawful entry into a national park with a weapon (a shotgun with three rounds of ammunition).

During September 2013 park rangers were patrolling the area when they saw ‘human foot-marks’ in the park and suspected they belonged to poachers. They followed the prints and then found and arrested the two accused. They had killed a Lesser Kudu and an Impala, and were also in possession of a shotgun and some bullets.

Asked for their permits to enter the park or to possess ‘government trophy’, they conceded they had neither.

Each relevant exhibit was handed into court and the accused, separately, said that they admitted the facts and exhibits to be ‘true and correct’.

The magistrate found them both guilty and after hearing their mitigation plea, he sentenced them on the unlawful entry charge to one year in prison and a fine of Tshs.10 000. For being in possession of government trophy they were given five years in jail and a fine of Tshs.100 000. On the third charge, related to the weapon and bullets, they were sentenced to two years imprisonment and a fine of Tshs.20 000, all three of which sentences were to run concurrently.

Although they had pleaded guilty, the two men were unhappy with their sentence and appealed, saying that their punishment was excessive and ‘paid no regard to the fact that they were first offenders’.

At this point it became clear that there were problems. The appeal magistrate noted that the three offences provided an option to pay a fine, but that the sentences handed down only involved imprisonment and no alternative fine was offered to them.

The sentences were then changed. On the first count they were now sentences to a fine of Tshs. 10 000 or one year in prison. Their sentence on the third count was now Tshs. 20 000 or two years in jail.

The second count was more complicated. Why had they been sentenced for their ‘government trophies’ under the wrong section, asked the appeal magistrate. The law prescribes that in such cases, the convicted person must pay 10 times the value of the trophies, and so the two were ordered to pay Tshs. 47 840 000, failing which they would spend 20 years in jail.

Obviously the two were now more dissatisfied than ever so they appealed again, this time to Tanzania’s highest court. Among their complaints was that their sentence was increased even though the ‘contents of the prosecution exhibits were not read’ after their admissions. Also, there was no proof by the prosecution that the meat found in their possession was actually Lesser Kudu and Impala.

Prosecuting counsel said grounds of appeal ought to be dismissed if they had not been raised in the lower courts. However, the grounds that raised issues of law could legitimately be considered in this appeal, he said.

It was true that some of the exhibits were not read to the accused – the inventory form, the trophy valuation certificate and the cautioned statements. But this did not mean they should be struck from the record because both accused had said during their trial that they admitted all the facts and the exhibits tendered to the court were 'true and correct’. In other words, they were ‘fully aware’ of the content of the exhibits even though their contents were not read out. If the court found in favour of the accused on this issue, then a new trial should be ordered.

The Chief Justice said that it was not correct that the accused should be assumed to be ‘fully aware’ of the content of the exhibits if these were not read out to them – yet it was important that they should be aware of the content. The wildlife conservation regulations put different values on trophies of different species and this information had to be added to any ‘trophy valuation certificate’ of the kind involved in this case. Among the kinds of information required was the weight of the trophy and the value per kilogram and the total amount in USD.

In this case the two accused had pleaded guilty but the crucial trophy valuation certificate – not read out to them – included factual information needed to prove the count on which the first appeal court had increased the sentence.

But if this shortcoming invalidated the conviction, what should happen next? The court found that a retrial would not be in the interests of justice because the record was incomplete: several of the key exhibits including the trophy valuation certificate and the ‘confessional’ statements by the accused were missing from the court file. Under those circumstances it would not be fair to order a fresh trial.

The appeal judges thus set aside the convictions and sentences and ordered that they should be freed unless otherwise lawfully held.

* During the Stellenbosch training course on environmental rights, one of the issues discussed by the judges was the fact that courts were often hampered in convictions when prosecutors made mistakes. This case seems a clear example of exactly this problem.

Carmel Rickard

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