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Pangolin not 'specially protected' in Zimbabwe

Publish date: 30 March 2020
Issue Number: 866
Diary: IBA Legalbrief Africa
Category: Criminal

Just as the whole world discovers that pangolin meat could have triggered the coronavirus pandemic sweeping the globe, it has emerged that Zimbabwe's legislation offers no real protection for the species, writes Carmel Rickard for Legalbrief. This has become clear from a decision of the High Court sitting in Harare this month, to review a criminal sentence and conviction. The accused, Shake Mafuka, was convicted and sentenced for unlawful possession of ivory and pangolin scales without a permit. The convictions were initially confirmed by two judges when they reviewed the case. Because the Magistrate's Court found no special circumstances, it sentenced Mafuka to nine years in prison on each count, bringing the total to 18 years. On review, the High Court altered the sentence to a total of just nine years because the judges believed the two counts should be treated as one for sentencing. However, the matter later came back to the High Court for further review. This was after a case in Masvingo raised the question of whether pangolins were listed as protected animals on a special list drawn up by the government. As a result, in its second review, the court dealing with Mafuka's matter noted that s128 of the Parks and Wildlife Act, relied on for conviction in the case, did not mention the pangolin, as a specially protected animal, a fact that the court had clearly initially overlooked. There was thus was no ministerial certificate specifying the pangolin 'as a specially protected animal the unlawful possession of which would attract the mandatory minimum sentence of nine years ... in the absence of ... special circumstances'.

As a result, the court had to re-think Mafuka's sentence and conviction. The judges confirmed that the sentence of nine years for the ivory conviction was 'in accordance with real and substantial justice', and the ivory was forfeit to the state. However, conviction on the second count, relating to possession of pangolin scales without a permit, had to be set aside. Instead, the court sentenced Mafuka to a fine of $100 Zimbabwe dollars or six months. Not that any of this would have helped Mafuka. As the court noted, the entire review was an academic exercise since Mafuka died last year, in Chikurubi Maximum Prison. The problem about pangolin not being included on the schedule was first noted some months ago when the High Court in Masvingo dealt with a review of a case involving a teacher and two others, tried for possessing a pangolin that they tried to sell for $5 000. The three asked for leniency on the grounds that their offence 'did not cause any proven harm to Zimbabwe's economy'. The court pointed out that the pangolin is one of 24 protected species whose possession or slaughter attracts a jail term of three years or a $500 fine. However, s128 says that any crime involving protected animals attracts a mandatory sentence of nine years. The problem, said the court, was that the s128 schedule does not mention the pangolin, by name, as an animal whose possession attracts the mandatory nine-year sentence. A local newspaper quoted a section of that judgment: '(A)s the law stands, hunting or possession of a pangolin does not warrant the special penalty provided for in s128 of the Act, until the Minister specifies the pangolin by name.' Since then the Minister has not, however, added the pangolin to the list of specially protected animals in Zimbabwe.

Judgment