Republic v Akimu País/Territorio Malawi Tipo de la corte Nacional - corte superior Fecha Dic 29, 2003 Fuente UNEP, InforMEA Nombre del tribunal High Court of Malawi Número de referencia Case Number 372 of 2003 Idioma Inglés Materia Especies silvestres y ecosistemas Resumen As mentioned above, officials of the National Parks and Wildlife Department disguised themselves as potential customers of the defendant, who was in possession of large amounts of ivory with the intention for sale. After eventually arresting the defendant on 20 July 2003, the officials were met with stiff resistance by the defendant and neighbours of the defendant as well as a large group of villagers. The defendant, as acknowledged in the facts summary, encouraged and called upon these third persons to attack the officials of the National Parks and Wildlife Department. One official was badly injured and eventually the seizure of the ivory was successful. After conviction the First Grade Magistrate imposed a fine of 6,000 Malawian Kwacha [approx. USD 13,000] and in default one year imprisonment. The defendant subsequently paid the fine. The key concern of the Department of National Parks and Wildlife is that such a punishment might not suffice to deter offenders and preserve the wildlife, as the proceeds from poaching and trafficking of trophies are far higher. An environmental lawyer appearing for the Director of Public Prosecutions pointed out that there are uncertainties in the wording of the Section 110 of the National Parks and Wildlife Act, namely: "Any person who unlawfully possesses or who purports to buy, sell or otherwise transfer or deal in any government trophy shall be guilty of an offence [...] and shall be liable to a fine of 10,000 and to imprisonment for a term of 5 years and in any case the fine shall not be less than the value of the specimen involved in commission of the offence." The lawyer poses three vital questions: 1. The 10,000 in the Section is neither the minimum nor the maximum. Why have it? 2. Is the defendant only liable to a fine of up to the value of the trophy? Or should the court impose a fine equivalent to the value of the trophy? Or does it mean 10,000 is the minimum fee? 3. If, for example, the value of the trophy is 6,000, the court cannot impose 4,000: it must impose 6,000. If the effect of the Section is that the court has discretion, the maximum fine varies with the value of the trophy, which would mean that the maximum sentence can be greater or less than 10,000? Furthermore, whether to impose a fine or imprisonment is a difficult question. The defendant raised the issue of having a precarious family situation (children and lone relatives to take care of). Legal reasoning: The Court reasoned that first of all, domestic concerns are not matters sentencing Courts regard in passing sentences. Only in very exceptional circumstances, will the court regard domestic matters, out of mercy. The judge pointed out that the legislation (the National Parks and Wildlife Act) preserves the unique heritage and ecosystem of the country, and therefore it is sound sentencing policy to ensure that the threat to these species and the ecosystem are punished appropriately. "It is contrary to the public interest that the conduct displayed in this matter should be punished by a fine alone without imprisonment". Judgment: The Court found that the maximum fine was MWK 10,000, and so MWK 6,000 cannot have been an unreasonable fine. Furthermore, the Court had regarded the maximum prison sentence, which is 5 years in respect of this case. Since it was decided that a combination of a fine and a prison term would be appropriate disposal of the crime and the offender, the Court sentenced the defendant to one year imprisonment. (Provided by: UNODC SHERLOC) Texto completo Malawi-1.pdf Página web www.unodc.org