REPUBLIC OF MALAWI

IN THE CHIEF RESIDENT MAGISTRATE’S COURT

SITTING AT MZIMBA

CRIMINAL CASE NO. 423 OF 2022

THE STATE

-AND-

MISCHECK BOTHA………………..…..………..........................THE CONVICT

Coram: Chiotcha, Chief Resident Magistrate

S/Supt. Moja Phiri-Police Prosecutor

Kadzipatike-Counsel for the Convict.

Nkhonjera-Court Clerk and Official Interpreter

SENTENCE
1. Misheck Botha, has been convicted in this court with three counts of
wildlife offences and one count of immigration offence. On the first count,
he has been convicted with the offence of being found in possession of
specimen of a listed species without a permit or license contrary to s. 86(1)
as read with s. 110B(b) of the National Parks and Wildlife Amended Act,
2017. On the second count, he has been convicted with the offence of
dealing in government trophy without a permit contrary to s.91 (1) as read
with s. 110B (b) of the National Parks and Wildlife Amended Act, 2017. On
the third count, the convict has been convicted with the offence of unlawful
transfer of government trophy contrary to s.91 (1) as read with s.110B (b)
of the National Parks and Wildlife Act, 2017. And on the last count, the
convict has been convicted with the offence of illegal entry into the
Republic of Malawi contrary to s. 21(1) as read with s. 37(d) of the
Immigration Act.

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2. The convict has been convicted after full trial and the court is called upon
to impose an appropriate sentences in the circumstances.
3. The state has called for a stiff penalty to be meted to the convict. The state
has based this submission on the basis that the convict is not the first
time offender. They have told the court that the convict was previously
convicted by the Subordinate Court for the Mpika District in the Republic
of Zambia. They have said the convict was convicted with the offences of
unlawful possession of firearm, unlawful possession of ammunition and
unlawful possession of government trophy for possessing a shotgun serial
number 022620, 4x .375 ammunitions, 9x.300 ammunitions, 1x12 bore
shell and 10 kilograms carcass of Duiker meat. The state has shown the
court a statement of fact duly signed by Public Prosecutor of Zambia,
charge sheet and Certificate of Conviction from the Subordinate Court of
Mpika District.
4. The state has further called for a stiff penalty on the basis that the convict
has been convicted with offences that affect an important part of the nation
of Malawi. He said that Malawi has been heavily affected by issues of
extinction of elephants through killing and extraction of tusks. And that
this is a matter of public concern more especially when the offence involves
trans-border elements like in the present matter. It has therefore been
submitted that public interest in this matter would require the convict to
be given a sentence that will deter would be offenders from committing
similar crimes. The prosecutor has cited the case of Vuka Mkoloma Mtete
vs Republic Criminal Appeal No. 117 of 2017(Mzuzu Registry) where
justice DeGabriele held that;
The 2017 amendment of the National Parks and Wildlife Act aims
to put meaningful penalties for wildlife offences in line with the
approach worldwide that stiff and deterrent sentences are required
as one way of curbing and reversing the killing of wildlife and
endangered species in particular
5. Further, the state has told the court that it has a duty as one arms of
government to preserve the unique heritage and ecosystem in Malawi
which is in extinction by imposing meaningful sentences. He has said this

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 is more important because this is a source of tourism in Malawi. He has
cited the case of Rep vs Maria Akimu Revision Case No. 9 of 2003 where
courts were urged to pass meaningful sentences to preserve biodiversity.
He has finally urged the court to take into account that the starting point
for the wildlife offences in this case is 6 years and that the court should
scale the sentence up or down depending on the mitigating and
aggravating factors. And that in the present case, it does not seem that
there are any mitigating factors in favour of the convict because he did not
plead guilty, he is not the first time offender, he is a cross boarder trafficker
of wildlife specimen and that he meticulously planned this offence with his
friends for commercial purposes. They have therefore proposed a sentence
of 15 years IHL on the 1st to 3rd count and a maximum sentence on the
last count.
6. The state has also asked the court to forfeit the ivory to the department of
National Parks and Wildlife for destruction and that the phone which was
used in commission of this crime should be forfeited because it is an
instrumentality of crime.
7. On his part, the convict has told the court that he is sorry for what he did.
He has told the court that he had intended to admit the offence here in
court earlier to avoid wasting the court’s time but that his lawyer was the
one who told him not to admit. He is therefore apologetic for wasting the
court’s time. He told the court that the whole scheme was a set up from
the Department of National Parks and Wildlife. He said he was set up
because he had refused to work with the department to arrest people
through deception. And that it was because of this that they decided to set
him up and arrest him. He says it is therefore not surprising that, at the
time of his arrest, he was with his accomplices, but the police let them go.
He said Myles Zidana confessed to him at Jenda Police Station that they
arrested him because he had refused to work for them. He said all the
messages in his phone that were tendered in court are forwarded messages
aimed at setting him up. He argues that the reason why they are getting
documents from Zambia is to make sure that he suffers because he refused
to work for them.

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8. He has further told the court that although the prosecutor would like to
paint him as a hard core crime, he says he is not. He says he is a family
man and not a hard core criminal. He says he is a first time offender to the
government of Malawi. He says once given his sentence, he should be
allowed to serve the sentence in Zambia otherwise here he will die because
he is eating once a day. He has asked the court to restore his phone to him
because it was not carrying anything.
9. I should appreciate the arguments from both the state and the convict.
They have definitely helped the court to arrive at a proper sentence in this
case.
10. That said, under s. 110B(b) of National Parks and Wildlife Act, 2017 it is
stated that;
“…any person who is convicted of an offence involving possession
of, buys, selling, transferring or receiving in transfer or attempting
to possess, buy, sell, transfer or receives in transfer, any specimen
of any specimen of listed species shall be liable to imprisonment
for a term of thirty years…”
11. S. 37(d) of the Immigration Act provides that;
Any person who contravenes or fails to comply with any provisions
of this Act for the contravention whereof or failure to comply
wherewith no penalty is specially provided, shall be guilty of an
offence and liable to a fine of K500 or to imprisonment for twelve
months.
12. Using the fines (Conversion) Act, the current fine for this offence is MK25
000.00. Clearly, the first, second and third counts attracts maximum
sentences of 30 years IHL and the last count attracts a fine of MK25 000.00
of twelve months IHL. These are the maximum sentences prescribed by
parliament. However, it is within the discretion of the court to arrive at a
proper sentence in a particular case having regard to maximum limits set
by the legislature.
13. To arrive at such a sentence there are several principles that the court is
supposed to take into account including those that have already been ably
highlighted by the state. The first principle is that in our contemporary

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 democratic dispensation a sentence must comply with the dictates of the
constitution-see Rep vs Keke Confirmation Case No 404 of 2010 (HC)
(PR) (unreported). Section 19(3) of the Constitution has created a
fundamental right to citizens not to be subjected to cruel, inhuman or
degrading treatment or punishment. Courts must therefore pass sentences
that are not cruel, inhuman or degrading. It is for that reason that it was
stated in the case of Rep – v – Shauti Confirmation Case Number 68 of
1996 (unreported) that the general principle behind a sentence is that it
must be fitting to the crime and criminal, be fair to society; at the same
time mercy towards the offender should not be perceived as weakness or
sympathy with criminal behavior. The court can arrive at that sentence by
looking at both the aggravating and mitigating factors of the case from the
circumstances of the case.
14. For that reason, it is pertinent to highlight the facts of the case at this
juncture. The circumstances are that, the convict, a Zambian national,
had pieces of ivory in Zambia for which he was looking for a market to sale.
Through Nkhonjera Malawi and Jimmy he was introduced to Myles Zidana
who is a Wildlife and National Parks Officer based in Lilongwe. Not knowing
that the said Myles Zidana is a wildlife and national parks officer, the
convict agreed to meet him at Jenda for purposes of selling the said pieces
of ivory. They eventually met at Jenda Lodge where they agreed to transact
the illegal trade at Whynot along Jenda Embangweni road. When they went
to that place, the convict went and brought the ivory and took it into the
vehicle of Mr. Zidana whereupon he was arrested. The said pieces were
examined by an expert and have been confirmed to be ivory. Apart from
this, the convict’s phone had revealing conversation where the convict said
he had the ivory and was ready to travel to Malawi and sale them. It was
also discovered that the convict entered into Malawi without a permit.
15. From these circumstances it can be appreciated that the convict was
engaging in wildlife crimes for commercial purposes. He was engaging in
cross boarder trafficking of wildlife specimen. These seriously aggravates
the offences in this matter. It will remiss of me not to surmise that the
convict is into this trade of killing and selling specimen of wildlife species

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 considering that this is not his first time and that previously he was found
with a shotgun and fresh meat of wildlife animal for which he was
convicted and punished accordingly. He therefore deserves to be punished
to instill a message in him that currently wildlife crimes are a no go zone.
16. This is important in this case because, the convict having been convicted
on similar crimes previously should have learnt and stop engaging in these
malpractices. But he did not. He continued to commit similar crimes. So it
is clearly the duty of this court to make sure that a right signal is sent to
the convict to never again engage in this malpractice.
17. As rightly observed by the prosecutor, the need to impose meaningful
sentences in wildlife crimes was well echoed by Justice Mwaungulu, as he
was then, in the case of Rep vs Maria Akimu Revision Case No. 9 of
2003 when he stated that;
“…Possessing, trafficking, hunting of trophies should in recent
times be considered as a serious offence sui generis. Much of the
trafficking, hunting and possession of trophies affects animals that
are endangered species under many international and regional
instruments or arrangements to which Malawi is a party. Under
these, Malawi must not only resort to steps reducing threats to the
species but eliminate completely all conduct that threatens these
species…”
18. The judge went on to hold that;
“…The National Parks and Wildlife Act manifests the legislature’s
intention to protect endangered species and the ecosystem for the
benefit of the people directly around the national park and the
country. The legislation preserves our unique heritage and
ecosystem. It is sound sentencing policy to ensure that the threat
to these species and the ecosystem from the conduct of the
defendant and all who, locally and internationally, are a menace,
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. If fines are the only punishment,
all our efforts may fail…”

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19. In the contemporary legal environment, it does not matter where the
animal was killed. Whether Zambia or Malawi it does not matter. Malawi,
as a member of the international community under CITES has a
responsibility that it should never be a hub for wildlife trade. Wildlife
criminals from other jurisdiction should not find any haven in Malawi. It
is for that reason that in the case of Jose Manuel and 34 others-v-Rep,
Criminal Appeal No. 17 of 2017 Chinese, Portuguese and Mozambican
nationals who had invaded and were engaged in wildlife crimes in Lengwe
National Park were severely punished with immediate custodial terms and
their expensive equipment and vehicles were forfeited. Currently therefore
an argument that “I am the first offender to the government of Malawi”
cannot stand in a court of law because in such matters the court has a
responsibility even to protect wildlife in other jurisdiction under the CITES.
20. That said, it should be mentioned that the recent trend in sentencing of
wildlife offenders is an immediate custodial sentence. In Hope
Kapalamula and others-v-Rep, Crim. Appeal No. 187 of 2016 a
sentence of 3 years’ imprisonment for dealing with 8.5 kilograms of ivory
was imposed and eventually confirmed by the High Court. It is worth
mentioning that Mr. Kapalamula and his fellow accomplices were charged
and convicted before the 2017 amendment. With the coming in of 2017
amendment which enhanced sentences for wildlife offences the
punishments should be severe. Even in Rep-v-John Sakala and another,
Conf. Case No. 2451 of 2016 two offenders who were found in possession
of ivory specimen worth about K22 million were sentenced to 3 years and
4 months’ custodial term which was upheld by the High Court and, again,
this was before the 2017 amendment. In this case, the court emphasized
the need to remove the monetary rewards from illicit wildlife trade as a
legitimate sentencing criterion.
21. In Rep v. Esau Billy, Aaron Billy Masaka &Lloyd Shaibu in 2017, the
convict were convicted with dealing in a government trophy (rhino horn)
contrary to Section 91(1) and Section 110(b) of the NPWA, possession of a
listed species contrary to Section 86(1) and Section 110(b) of the same Act,
entering into a protected area without a permit contrary to Section 32(1)

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 and 108 of the NPWA, killing of a listed species (a rhino) contrary to Section
35(a) and 108 of the NPWA, possession of a prohibited weapon contrary to
Section 16(2) of the Firearm Act; conveying a weapon contrary to section
33(1) of NPWA and failure to report. They were convicted and, on the 1st
count the court imposed a sentence of 18 years for Esau Aaron Billy, 10
years for Aaron Billy Masaka and 8 years for Lloyd Shaibu. On the 2nd
count, the court imposed 18 years for Esau Aaron Billy, 10 years for Aaron
Billy Masaka and 8 years for Lloyd Shaibu. On the 3rd and 4th counts Esau
Billy was given 18 months custodial sentence and 18 months custodial
sentence respectively. On the 5th count he was also given 18 months
custodial sentence. On the failure to report, Aaron Billy Masaka was given
a 30 months custodial sentence and Lloyd Shaibu 18 months’ custodial
sentence. The sentences were ordered to run concurrently with effect from
the date of sentence.
22. In this case, I have looked at the circumstances of the case. I have looked
at the quantity of the ivory involved. I have looked at the fact that the
convict is refusing to change after he was initially convicted of similar
crimes. I have looked at the cross boarder nature of the offence and that
the convict is able to traffic wildlife specimen across borders. I have looked
at the fact that he meticulously planned this offence with his friends for
commercial purposes. I have looked at the impact that these offences have
on the ecosystem and tourism industries of both Malawi and Zambia. I
have looked at the 2017 legislative intent that meaningful sentences
should be imposed in such crimes and I have looked at the prevailing
sentencing trends in the High Court of Malawi.
23. All these factors taken into account, I am of the view that a custodial
sentence of 7 years IHL will be appropriate on the first, second and third
count. A fine of MK25 000.00 will also be appropriate on the fourth count
and in default a prison sentence of 12 months IHL. The sentences on 1st,
2nd and 3rd count will run concurrently to each other. But they will run
consecutively to the sentence on 4th count if he fails to pay the MK25
000.00. Meaning that if he pays the fine, he will serve a total sentence of 7
years IHL and that if he does not pay he will serve a sentence of 8 years.

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 The sentences should run from the date the convict was arrested which is
the 5th day of September 2022 and will be served at Mzimba Prison here in
Malawi. It is not within the mandate of this court to order prisoner
transfers to a foreign country. The same is within the purview of the
executive arm of government.
24. The phone should be restored to the convict. The ivory should be forfeited
to the Department of Wildlife and National Parks for destruction.
25. Any aggrieved party can appeal to the High Court in 30 days from today.
Pronounced in Open Court, this 26th day of April 2023

P. D. CHIOTCHA
CHIEF RESIDENT MAGISTRATE

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