Tichaona Zindoga

25 September 2009

Harare — Zimbabwe's Midlands Province is sometimes referred to as the "green lung" of the country, mainly for its geographical location, pulsating vistas of grasslands and vast swathes of tree dotted vleis.

But if there is one colour that can be used to describe the province at a glance this time of the year, it is certainly black and not green.

Raging veld fires have left behind a charred and wasted countryside, dotted with ashy caricatures of former trees that juxtapose themselves against the evil black.

The same can now be said of Bulawayo and Matabeleland North provinces, along much of the countryside, as vegetation has been left at the mess of fires that have raged uncontrollably over vast areas, sometimes for days on end.

Veld fires are one example of wildlife crime as it violates Zimbabwe's environmental management laws, yet to the mainly ruthless architects of the fires, it has never really appeared to be a crime despite much effort by authorities to stop the scourge.

"We have now engaged the judiciary to see what type of deterrent jail sentences can be imposed on offenders.

"We must get to a stage when we say enough is enough and fight to conserve our natural resources effectively.

"This is the only heritage we have and this is the only heritage we should protect from fires and from poaching and all sorts of abuses,"
said Environment and Natural Resources Management Minister Francis Nhema.

Minister Nhema has in the past made passionate pleas for people to stop the fires.

Zimbabwe has over the years been highly regarded in international circles for its national conservation strategies. It involved a national tree planting day, gully reclamation and donga filling under the food-for-work programme but all the effort seem to be leading down the drain of history unless mandatory jail sentences are imposed on offenders.

The sentences must not only be mandatory but deterrent too.

"Fires have become a scourge in Zimbabwe and this is despite many efforts to stop it," said a police officer based in Matabeleland North, who said they had also engaged local leadership to assist in explaining the dangers of uncontrolled fires.

The fires have raged on notwithstanding, and have even led to death of people and loss of property in some cases.

Some reasons given for the starting of fires include land clearance and hunting of animals.

But the result of man's actions has been the destruction of natural animal habitats, possibility of the extinction of some animal and plant species, ecological imbalance and depleted genetic viability and a changed bio-diversity over time.

Granting for once the foregoing are "innocent" crimes, which they are not, however the escalation of the "serious" crimes such as rhino and elephant poaching over the years, which makes them appear as such, argue a strong case for the serious approach towards wildlife crime.

The frequency of the crimes has meant that the introduction of mandatory jail sentences for offenders must be considered as a matter of urgency, as a way of discouraging would be offenders.

In essence, the lack of stringent measures, and the escalation of poaching-related mortality of rhinos and elephants over the years means that Zimbabwe might face international scrutiny at forums such as the Convention on International Trade in Endangered Species at best and the decimation of its wildlife resources, at worst.

The courts have often come under fire for their "leniency" to wildlife crime offenders some wildlife stakeholders have complained that they could not secure conviction for offenders.

But the judiciary itself says its "hands are tied" for lack of provision for stiffer penalties and the courts cannot sentence an offender to a period outside that provided by law or sentencing jurisdiction.

Currently, there are no mandatory jail sentences for wildlife offences, and some offenders have even got away with "small" fines, which are considered not enough.

As a matter of fact, the General Laws Amendment Act and the Wildlife Amendment Act Number 2001 altered provisions of earlier legislation that provided for mandatory sentence.

The Wildlife Conservation Act (Chapter 199) which was replaced by Parks and Wildlife Act of 1975 both provided for minimum mandatory sentences unless there were special circumstances.

The "special circumstances" were interpreted as "extraordinary factor arising out of the commission of the offence or which is peculiar to the offender".

According to The General Laws Amendment Act and the Parks and Wildlife Amendment Act Number 22 of 2001 provides for a penalty not exceeding level 14 ($5 000) or for a period not exceeding 20 years or both such fine and imprisonment when an offender is convicted of unlawful killing of a rhino or any specially protected animal or for the possession of or trading in ivory or any trophy of a rhinoceros or any other specially protected species.

The elephant is not classified as a specially protected species.

Other offences include, but not limited to, possession of the durable remains of specially protected species such as horns and hides, which are considered State property; hunting, removal of any animal or part thereof, which has been removed from a National Park, safari area or sanctuary.

The trapping of wild animals also attracts fines that depend on the species killed.

According to Statutory Instrument 93 of 2009 an offender might have to pay compensation of between $120 000 for killing a rhino, $20 000 for killing an elephant, $6 000 for buffalo, $500 for a warthog to $3 for the possession of a kilogramme of wet meat to the responsible authority.

However, the issue of custodial sentence, which is widely considered deterrent enough, is not the first option the judiciary as the courts cannot impose a custodial sentence where there is the option of a fine.

In a paper prepared for a discussion on wildlife crime at a workshop in Hwange recently, magistrates argued that the courts could not impose sentences in excess of those stipulated by law or impose a custodial sentences where there was a provision for option of a fine.

"Case law holds that where a statute provides for a penalty of a fine or imprisonment, consideration should be first be given to a fine and if only such a penalty is not appropriate would be warranted," Chivhu magistrate, Mr Rueben Mukavhi, who presented the paper said.

Imprisonment, the magistrates submitted, is only "reserved for a bad case".

How "bad" a case could get is certainly a matter of debate, as interest groups such as environmentalists are certainly declaring war on offenders while the law tries to balance between the offence and the penalty.

However, the danger that wildlife crime poses to the environment, and the economy -- as tourism mainly depends on it -- means that legislature might have to reconsider the issue of mandatory prison term for wildlife offences.

Tourism contributes about 6 percent of Zimbabwe's Gross Domestic Product and the destruction of Zimbabwe's vibrant flora and fauna should be taken for what it is -- economic sabotage.

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