The State v Molo Mweembe and Markson Muleya

On 27 January 2018, the two accused persons, aged 41 and 42 years respectively, from Chief Sinankoma area of Binga, were arrested in an ambush operation by game rangers. They had attempted to sell 12kg of ivory valued at $2,057.00. The accused persons were charged with unlawful possession of unmarked ivory in contravention of section 82 of the Parks and Wildlife (General) Regulations, 1990 as read with section 128 of the Parks and Wildlife Act [Chapter 20:14] as amended. They pleaded guilty before the magistrates court sitting at Binga. The trial magistrate, observing that they had three pairs of horns (ivory) meaning three elephants were killed and that they intended to sell the ivory, sentenced each accused person to 20 years imprisonment, of which 5 years was suspended on condition of future good behaviour, leaving an effective 15 years imprisonment. The matter came before the High Court on automatic review in terms of section 57(1) of the Magistrates Court Act.

• Whether the trial magistrate erred in imposing a sentence of 15 years imprisonment (effective) when the mandatory minimum sentence prescribed by statute for a first conviction was 9 years imprisonment
• The proper interpretation and application of mandatory minimum sentences under section 128(1)(b) of the Parks and Wildlife Act
• Whether the number of ivory horns possessed should result in a sentence exceeding the mandatory minimum for a single count of unlawful possession

1. The conviction of the two accused persons is confirmed. 2. The sentence is set aside and substituted with the sentence of 9 years imprisonment for each accused person.

When an accused person is convicted of a single count of unlawful possession of ivory under section 128(1)(b) of the Parks and Wildlife Act, the mandatory minimum sentence of 9 years imprisonment for a first conviction applies to that single count, regardless of the quantity of ivory or number of horns involved. Courts must not impose sentences significantly exceeding the statutory mandatory minimum in the absence of truly convincing reasons, as the mandatory minimum sentence prescribed by the legislature already represents stern deterrent punishment that takes into account the mischief intended to be addressed. The possession of multiple ivory horns does not justify multiplying or significantly exceeding the mandatory minimum sentence where there is only one count of unlawful possession.

Mathonsi J made important observations about the nature and purpose of mandatory minimum sentences generally. He noted that mandatory minimum sentences constitute an invasion of the usual sentencing discretion of courts, which normally exercise discretion having regard to various relevant factors. When prescribing mandatory sentences, the legislature would have already taken into account the mischief to be addressed and fixed stern deterrent punishment fitting the offence. Research has shown that where a minimum term of imprisonment is made mandatory, sentences imposed are considerably longer than would normally be imposed for the crime in question. The court observed that mandatory minimum sentences lead to rigidity which brings unease to the courts, and that such sentences, by their nature, remove individualized sentencing based on particular circumstances of the offence and offender. The judge referenced the South African Constitutional Court decision in Centre for Justice Child Law v Minister of Justice and Constitutional Development, noting that statutorily prescribed minimum sentences must ordinarily be imposed absent 'truly convincing reasons' for departure, and that the legislation has a weighting effect leading to consistently heavier sentences.

This case is significant in Zimbabwean criminal law and sentencing jurisprudence as it clarifies the proper approach to mandatory minimum sentences, particularly in wildlife protection cases. It establishes important principles regarding judicial restraint when dealing with statutory mandatory minimum sentences, emphasizing that courts should not arbitrarily exceed such sentences merely because of aggravating factors like the quantity of contraband involved when the conviction is for a single count. The judgment provides guidance on the interpretation of section 128 of the Parks and Wildlife Act and reinforces that mandatory minimum sentences already represent the legislature's assessment of appropriate punishment, having taken into account the mischief to be addressed. It serves as a reminder that while wildlife crimes are serious, sentencing must still be done in accordance with statutory provisions and that the number of items involved does not multiply the mandatory minimum sentence for a single count offense.