shila mabele tange vs republic 2023 tzhc 18971 26 june 2023

THE UNITED REPUBLIC OFTANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL APPEAL NO 92 OF 2022 (Originating from Kilwa District Court in Criminal Case No. 07 of 2020) SHILA MABELE TANGE............................. ..........APPELLANT VERSUS THE REPUBLIC........................... ....... ......... ......RESPONDENT JUDGMENT ,Z' and 2&h June 2023 LALTAIKA, J. The appellant herein SHILA MABELE TANGE was arraigned in the District Court of Kilwa at Masoko charged with Unlawful Possession of Government Trophy c/s 86(l)(2)(c)(iii) of the Wildlife Conservation Act Cap 283; as Amended by Miscellaneous Amendment Act No 2 of 2016 read together with paragraph 14 of the first schedule and section 57(1) and section 60(2) of the Economic and Organized Crime Control Act Cap 200 RE 2019. Page 1 of 13 When the charge was read over and explained to the appellant (then accused) he denied wrongdoing. The trial court conducted a full trial. Having been satisfied that the prosecution had proved its case to the required standard, the appellant was convicted as charged and sentenced to serve a 20-year imprisonment term. Dissatisfied with the trial court decision, the appellant appealed to this Court on 5 grounds as reproduced hereunder: 1. That, the trial court erred in law and fact in convicting and sentencing the appellant while the appellant pleaded not guilty to the offence charged because he did not commit the alleged offence in question as it was fabricated on him by the prosecution side, 2. That the trial court erred in law and fact in convicting and sentencing the appellant since the evidence in supporting the charge was not at alt strong enough, and the appellant's defense if properly consideration raises serious doubts as-to his guilty and this reasonable court do not have such decision. 3, Thaf the trial magistrate erred in law and fact to convict and sentencing the appellant since there were reasonable due to the fact that there was not any sort of search which was conducted at the materia! day in the appellant's house, the alleged offence charged comes to the knowledge of the appellant soon after the appellant brought at police station. There after the offence planted onto the appellant ruthlessly for the purpose of incriminating him with the alleged offence charged, the question is whether this a real administration of criminaljustice is. 4. That the trial Court erred in law and fact in convicting and sentencing the Appellant twenty (20) years imprisonment without taking into consideration the period of time in which the appellant spent in prison while waiting for his trial as insisted on stating that the sentence shall take into account the period of which a person spent in remand. 5, That the trial Court erred in law and fact to convict and sentence the appellant without considering the defense evidence produced by the appellant on denying the whole allegation and evidence adduced before the trial Court against him and the trial magistrate did not take it into maximum consideration as the appellant lamenting on the fabrication of the whole allegation against him. When the appeal was called on for hearing, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, Page 2 of 13 fended through Mr. Justus Zegge, Seamed State Attorney. As the appellant was not learned in law, he did not have much to add to his expounded grounds of appeal. He requested the learned State Attorney to proceed while reserving his right to rejoinder in case that need arose. Taking the podium, Mr. Zegge announced that the respondent objected the appeal. He stressed that the respondent Republic supported both the sentence and conviction of the lower court and wished that the same are upheld by this Court. Mr. Zegge stated that his submission would address the first ground separately, followed by the second, fifth, and third grounds collectively, and conclude with the fourth ground. Responding to the first ground of appeal, Mr. Zegge clarified that the appellant's complaint was that the trial court had erred in law and fact by convicting and sentencing him despite pleading not guilty. Referring to Section 228(1) and Section 229 of the Criminal Procedure Act No 20 RE 2019, Mr. Zegge argued strongly that the position of the law obtained in our jurisdiction is that when an accused person pleads not guilty, the prosecution is required to produce evidence to support the allegations. In the lower court's proceedings, the learned State Attorney averred, eight prosecution witnesses were presented. Mr. Zegge argued that the appellant’s plea of not guilty notwithstanding, the strong evidence provided by the eight witnesses, should lead to the dismissal of this ground for lack of merit. Regarding the second, third, and fifth grounds collectively, Mr. Zegge referred to Section 110 of the Evidence Act Cap 6. RE 2019. Page 3 of 13 This section states that in order for a court to make a judgment on a legal right or liability based on the existence of certain facts, those facts must be proven. The prosecution presented eight witnesses, averred the learned State Attorney, including PW1, PW2, and PW3, who witnessed the incident. The appellant was found in possession of bush meat during a search conducted at his house. The trial court's proceedings, particularly pages 26, 27, 28, 29, and 30, provided information about the search conducted in the appellant's premises. Mr. Zegge also cited the explanation provided by PW5, a police officer, on page 40, regarding the impounding and subsequent disposal of the rotting meat with the permission of the Primary Court Magistrate. Based on the burden of proof lying with the prosecution, Mr. Zegge argued that the prosecution had proven the case by presenting witnesses they deemed appropriate. Therefore, he prayed for the dismissal of the second, third, and fifth grounds for lack of merit. Regarding the fourth ground, Mr. Zegge informed that the complaint pertained to the sentence. The appellant had criticized the trial court for not considering the time spent in remand custody awaiting trial. Mr. Zegge strongly objected this ground. He argued that it was clear on page 11 of the impugned judgment, the learned Magistrate convicted the appellant under section 86(1) and (2)(c)(ii) of the Wildlife Conservation Act (Supra), in conjunction with the relevant sections of the Economic and Organized Crimes Control Act (Supra). Page 4 of 13 Mr,. Zegge pointed out that these sections specified the sentence to be imposed upon proof of guilty which was 20 years. Therefore/ it was a statutory punishment/ and the court was obligated to adhere to the law (as mentioned on page 13 of the impugned judgment). Mr. Zegge firmly believed that the grounds lacked merit and requested the court to uphold the decision of the District Court of Kilwa. Appellant on his part insisted that he had never committed the offense and claimed that it had been fabricated. He disagreed with PW2 Ismail Ligumwichi (Chairman of the Village Forest)/ PW3 Yasin Ndonya (Secretary), and PW4 Mwalami Kipengele, Village Executive Officer (VEO). He explained that he had moved to the village of NAKIU in 2007 and was instructed to register himself in order to: be allocated a piece of land for agriculture. He was given a farm in a location called Nandanga, near the Village Forest. The village had a forest committee. In 2019/ when a new committee was formed/ PW3 informed him that his farm was situated within the village forest. He was then asked to pay TZS30,000 for each acre he owned. The appellant mentioned that he had cultivated the land for many years and none of the previous committees/ which each lasted for four years, had informed him that the area was part of the village conservation area. When he questioned why he needed to pay if his farm was outside the protected area/ he had a dispute with Mr. Ndonya. Mr. Ndonya stated that the appellant could not own the farm because it was meant for locals. However, the appellant argued that he had been living there and had even Page 5 pf!3 built his house on the land. PW3, Yasin Ndonya, informed the appellant that PW2 and PW4 had instructed him to collect TZS 600,000 from him, but the appellant refused, asserting that he was also a Tanzanian. On September 6, 2020, the appellant encountered PWl, PW2, and PW3, accompanied by a committee. They questioned him about his alleged prevention of their people from protecting the environment. The appellant explained that the farm had been there for many years without any objections being raised. He was not taken home but was instead taken directly to the VEO's [Village Executive Officer's] Office. The appellant claimed that the case had been fabricated at the police station because he had refused to give them money. The authorities alleged that he had thumb printed a form and confiscated 0.75 kg of bush meat of a warthog (known in Kiswahili as "ngiri."). The appellant stated that he never signed the inventory form and noticed that the signatures on it were different. In conclusion, the appellant prayed for acquittal. He also mentioned that PW3 had a younger brother who was currently farming on his land. I have dispassionately considered the grounds of appeal, rival submissions, and thoroughly examined the lower court's records. Before I come to the legal issues that have emerged, I think it is proper to appeal to logic. The appellant was allegedly found with warthog meat in his house. Since there was nothing to support that he had actually killed the warthog, such as weapons or skin, the prosecution team claimed that he had grabbed the meat from a lion. This is very funny! When the appellant Page 6 of 13 appeared in this court for hearing of his appeal, I had already gone through the lower court's records. I expected to see someone like the Biblical character Samson who had the strength of killing scores of lions, this time from Kilwa. I was prepared to ask him his secret of fighting with a lion for a piece of warthog meat. The appellant had been consistent that the case was fabricated because he refused to give a bribe or euphesnistically, he refused to pay TZS 30,000 village levy for each acre of land he owned. In the absence of any evidence to that effect, I have consulted the inner store of logic and I find the claim that the appellant fought with a lion outright illogical. No one would believe such lies. This is a very unfortunate case that shows how law can be abused to cause untold pain to an individual and his whole family. I intend to clarify a few things before I pronounce my verdict which is probably already clear from these preliminary paragraphs on fighting with a lion for nyama ya ngirh Conservation of a village forest seems to be the center of the misunderstanding. It appears that the appellant had moved from the Lake Zone area to the village of Nakiu in Kilwa District, Lindi in 2007. Having lived in the area for some time, he was allocated a piece of land for agriculture in a place called Nandanga. As fate would have it, the appellant's farm happens to be next to a village forest. The appellant, however, lived in harmony until a new forest committee of his village was elected in 2019. Page 7 of 13 Since the issue was connected with forestry and not wildlife, Nakiu Village leaders asked an Officer of the Tanzania Forest Services (TFS) to accompany them for inspection of the forest. The officer who would later testify as PW1 told the lower court that be found trees randomly cut down by people who were preparing farms. Unfortunately, the officer did not pursue the offences related to protection of Lumo Forest but ended up joining the village council in a search that would form a completely different offence. To cut the long story short, the village leaders and the Forest Officer decided to turn themselves into investigators, arresting squad, and witnesses. However, they realized (later I would assume) that the only law that could accommodate their plot was the Wildlife Conservation Act (supra). No wonder, this piece of legislation is one of the most abused laws in our country. If one is not liked by village leaders, the WCA is invoked. The law is full of ambiguities and outright contradictions because of its colonial past. I will come back to this colonial aspect later, for now, let us see what it says about the search conducted by the Forest Officer and purported "conservation" committee: 106. -fl) Without prejudice to any other idw, where any authorised officer has reasonable grounds to believe that any person has committed or is about to commit an offence under this Act, he may- fa) require any such person to produce for his inspection any animal, game meat, trophy or weapon in his possession or any licence, permit or other document issued to him or required to be kept by him under the provisions of this Act or the Firearms and Ammunition Control Act; (b) enter and search without warrant any land, building, tent, vehicle, aircraft or vessel in the occupation or use of such person, Page 8 of 13 open and search any baggage or other thing in his possession: Provided that, no dwelling house shall be entered into without a warrant except in the presence of at least one independent witness.., I can assume that the employee of the TFS could be regarded as an "authorized officer" as defined by section 3 of the WCA. However, the trial court did not bother to find out how a TFS staff assumed the role of a TAWA (Tanzania Wildlife Authority) or any other Wildlife Conservation organization purposely for this particular case? Was he hired? The trial court did not discuss the requirement for an independent witness considering the search was conducted in the dwelling house of the appellant. Although the appellant has consistently distanced himself from warthog meat's allegations, it is important to point out that the WCA should not be interpreted in isolation from the tenets of fair trial. Coming back to colonial sentiments of the WCA, nature conservation laws enacted during colonial era throughout Africa have one thing in common: they vested ownership of all wildlife to the colonial government. Those laws carried sweeping provisions that: criminalized everything that had to do with wildlife to ensure there was a clear separation between Africans and their wildlife heritage. Unfortunately, many if not most of those provisions are still a part of wildlife laws of many African countries, I will explain in plain language using the present appeal as a case study. The appellant was arraigned in court charged with Unlawful Possession of Government Trophy. The sections of the law cited namely 86(l)(2)(c)(iii) of the Wildlife Conservation Act Cap 283; as Page 9 of 13 Amended by Miscellaneous Amendment Act No 2 of 2016 read together with paragraph .14 of the first schedule and section 57(1) and section 60(2) of the Economic and Organized Crime Control Act Cap 200 RE 2019, would on the face of it give an impression that the appellant is a member of a criminal racket for trafficking of elephant tasks or rhinoceros horns. Far from such thing. The subject matter if any, is some 0.75 kg of bush meat allegedly grabbed from a (sleeping) lion!! I am aware of some African countries that have amended their laws to include an offence related to being in possession of illegal bush meat. This is the way to go. Courts would be delighted to see that the one size fits a/i approach is not used to import the law of the jungle into a court of justice. Our modus operandi is different. Apparently, although the word government trophy has been retained in Wildlife laws around the continent, it still carries this connotation of a colonial ranger being given a trophy (prize) for subjugating African "poachers". It is closely linked to the then prevailing culture of trophy hunting in the African savannah in the late 1880's and early 1900's. While a lion tail or an elephant task can be considered a government trophy it raises eyebrows to hear that pieces of meat vinyango belong to the same family. It is important to emphasize that even in the absence of a slightly lower sentence for possession of illegal bush meat compared to the current blanket "government trophy" approach that places vinyango and elephant tasks in the same group, a correct interpretation of the law would include "meat" in the list of government trophy only when the accused is arrested with the meat (say of a gazelle) while still in the forest or outside the Page 10 of13 dwelling house. To prove this, a photograph would be needed. The word of a ranger cannot be taken for granted. Standard of proof in criminal cases remains the same: beyond reasonable doubt. The law of the jungle must be left in the jungle. When that meat reaches a family dining table it becomes 'illegal bush meat (or illegal game meat, used interchangeably). It was government trophy before it reached a dwelling house and cut down into pieces that can be shared by almost a whole village. To avoid absurdity in the law, it is expected that the charge sheet of an old woman found with illegal bush meat in her dwelling house nyumba ya nyasi would n't bear the same label of a "jangili" or poacher of the "government trophy" in the same language as that of the (most wanted) wildlife trafficker. Proper procedures for search warrants and/or presence of an 5- independent witness during the search would be among the requirements for arraignment in court. This does not exclude reliable, scientific evidence to prove, beyond reasonable doubt that the meat impounded from a family dinner was indeed of a wildlife species. Uncritical acceptance of assertions of game rangers that they could tell that the meat was of a wild animal because they spent certain years in some college is lowering the standard of proof of a criminal cases. This leads to overcriminalization and congestion in prisons. The law and economics school (of thought) is very clear: offences that are more harmful to the economy like wildlife trafficking and killing of big game for profit in a country that depends largely on the big five to Page11 of 13 attract tourists should NOT be dealt with the same seriousness and vigor as felonies related to being found in possession of meat of a warthog. The cost of prosecution must also be higher to avoid overcriminalization and prison congestion. More importantly, the law must be interpreted liberally in accordance with the spirit of the Wildlife Conservation Policy of Tanzania of 1998 which, among other things, seeks to narrow the gap between communities and their wildlife resources. All said and done, I allow the appeal. I quash the conviction and the sentence of the trial court. I hereby order that SHILA MABELE TANGE be released from prison forthwith unless he is being held for another lawful cause. JZ> It rs £p ordered. ILL-aM-Ji \ Aaltaika JUDGE This judgement is delivered under my hands and the seal of this court this 26th day of June 2023 in the presence of Mr. Melchior Hurubano, learned State Attorney and the appellant who has appeared in person, unrepresented. .1 ( \ rwi A p I. laltaika JUDGE 26.06.2023 Page 12 of 13 Court The right to appeal to the Court of Appeal of Tanzania is fully explained. LTAIKA JUDGE 26.06.2023 Page 13 of 13