THE Court of Appeal has acquitted two suspected poachers, Boniface Malyongo and his brother Lucas Malyongo, who were jailed 10 years each for leading organized crime and unlawful dealing in 118 pieces elephant tusks, which are government trophies, worth over 2bn/-.
A panel led by Chief Justice Ibrahim Juma and Justices Stella Mugasha and Mary Levira ruled in favour of Boniface, famously known as Shetani hana huruma (The devil has no Mercy) and Lucas, alias Ruksa Mponze, alias Shimie, after allowing their appeal against their convicts of the two charges.
“We find the appeal has merit and it is hereby allowed. The conviction against the two appellants (Malyongo bothers) is quashed, and their respective sentences are set aside and unless they are otherwise lawfully held, they shall be set at liberty forthwith,” the justices declared.
The particulars of leading organized crime alleged that on diverse dates between January 1, 2009 and October 23, 2015 at diverse places within Dodoma and Dar es Salaam Regions, the appellants jointly and willfully organized and managed a criminal racket.
This involved collecting, transporting and selling Government Trophies, that is, 118 elephant tusks, valued 1,929,300,000/-. It was further alleged that they did not have any permit from the Director of Wildlife.
Particulars of unlawful dealing in trophies show that at same places and dates the appellants willfully organized and managed the racket by collecting, transporting and selling the government trophies.
It was alleged that they neither had a trophy dealer’s licence nor a permit from the Wildlife Director. During hearing of the appeal, counsel for the appellants had contended, among others, that the charges against his clients were not proved by the prosecution to the required standard by the prosecution.
Looking at the particulars of the offences, the prosecution was required to prove the ingredients of organizing and managing of a criminal racket, which the charge sheet specified as collecting, transporting and selling 118 elephant tusks which are government trophies.
“No prosecution witness testified to prove how the appellants collected or transported or sold 118 elephant tusks,” the justices said in their judgment delivered in the Capital City of Dodoma recently.
They went on explaining that even the Game Reserve Officer who prepared the Valuation Report for 118 elephant tusks, conceded before the trial court, that the caution statement of the first appellant was the source of his information about 118 pieces of elephant tusks.
The justices noted that the trial court relied on his cautioned statement to convict Shetani hana Huruma with the counts.
However, on the first appeal, the High Court expunged from the records because the magistrate could not obtain its voluntariness when taken before the police.
When deliberating the appeal, therefore, the justices of the appeals court, the highest temple of justice in the country had this to say, “With expungement of (caution statement), the 118 elephant tusks and the evaluation report lack any evidential basis.”
The prosecution had robustly submitted that they relied on oral confession in proving the guilt of the appellants and referred to the testimony of Shetani hana Huruma confessing orally to the police that he bought a car for the witch doctor for the smooth facilitation of ivory business.
“With due respect, the supposedly oral confession which (Shetani hana Huruma) made to (police) does not in our view prove ingredients of collection, transportation and selling of 118 elephant tusks shown in the particulars of the two counts,” the justices said.
According to them, it was also clear to them that the police did not caution the appellant (Shetani hana Huruma) that he was not obliged to say anything and if he chose to say anything, it would be recorded and used in evidence later against him.
“The trial and first appellate courts did not consider (his) voluntariness oral confession to (the police). Failure by the police to warn (him) who they suspected prior to his making an oral confession took much weight away from this evidence,” the justices said.
They also noted that the only pieces of evidence lined up against Lucas were oral confession of his brother and finding in his possession a vehicle Canter make which was registered in the name of his brother, but such evidence did not prove as against him the ingredients of the two counts.