Two men, found guilty of being in possession of almost two tons of elephant tusks, have just lost a third challenge in their case. The matter was brought before Tanzania’s court of appeal for a second time, with counsel urging the court, on review, to change its earlier decision on sentence. While declining the appeal, the judges called the review a disguised appeal against sentence.
The accused claimed the original appeal decision showed a ‘manifest error’ resulting in a miscarriage of justice. But, in its judgment, the court ruled that no judgment could be perfect. They, however, said the grounds the accused raised were fundamental and would require a reconsideration of the entire decision, something not permitted in a review.
This story goes back 10 years, and starts with an intelligence report that there was a consignment of ‘government trophies’ at the home of the three men originally accused. Police followed them and received further information that the men under surveillance were ‘on the verge of picking up’ government trophies.
At their home, the police found 706 pieces of elephant tusks, weighing 1889 kilograms in all, as well as three vehicles that were seized along with the ivory. At the end of their trial at the magistrates court, one of the three was acquitted. The other two, Huang Qin and Xu Fujie, were convicted on two counts: unlawful possession of government trophies, and corrupt transactions, under the Prevention and Combating of Corruption Act. This second conviction related to allegations that they had tried to bribe the police who searched the house, offering them money to let them go free.
On the first count they were sentenced to pay a fine of more than Tshs54m (Kes3.1 million) each or, in default of payment, to a custodial sentence of 30 years each. On the second, they were sentenced to a fine of Tshs1m (Kes58,000) or five years in jail.
The two men unsuccessfully challenged the outcome at the high court. At the appeal court they met with more success, however – the court set aside their corruption conviction because the money allegedly offered by the accused to the police hadn’t been produced in court.
Fined at least 10 times the value of the tusks
The judges also said the magistrate appeared not to have considered that the accused were first offenders. Instead, he ‘concentrated on the large number of elephants killed and how (the actions of the men) threatened to extinguish elephants’. The judges therefore reduced the original jail time from 30 years to 20 years each, and ordered that the two should pay a fine of ‘not less than ten times the value’ of the tusks – this was the same amount as the trial court had set.
That appeal was decided in May 2021, and the court of appeal stressed, in its judgment, that ‘this was the second and final appeal.’ Curiously, the case was back again before the court of appeal in March 2023.
In response, the applicants said they were bringing a ‘review application’, and claimed that the earlier appeal decision ‘has a manifest error on the face of the record’, resulting in a miscarriage of justice.
This ‘manifest error’ concerned the sentence. Counsel for the two men submitted that the two men were convicted and sentenced under the Wildlife Conservation Act (WCA) and that the sentenced imposed on them had been reduced, on appeal, under the WCA, from 30 to 20 years.
However, said counsel, they were also charged under the Economic and Organised Crime Control Act (EOCCA), and, at the time the offence was committed, the punishment in terms of the section of the EOCCA under which they were convicted, was a maximum of 15 years. According to counsel, an earlier judgment of the appeal court had ‘advocated’ imposing a ‘milder’ sentence in such a case.
This ‘error’ was patent from the face of the appeal judgment in the present case: it prejudiced the two men and the court should rectify the problem on review, said counsel. The prosecution objected to the strategy, calling it an appeal in disguise.
The judges began their decision with a reminder that the law on review was settled. The jurisdiction of the appeal court to review is own decisions was exercisable only in very limited circumstances, one of which would be in a case of a ‘manifest error on the face of the record’ resulting in a miscarriage of justice.
In answering the question the court, for example, said on one occasion that the error ‘must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions.’
Here, the complaint was that the sentence should have been under the EOCCA rather than the WCA. ‘With utmost respect to the learned counsel for the applicants, this is an appeal in disguise against sentence. He wants us to sit on an appeal on sentence against our own decision. That, as already shown … is not legally acceptable.’
The judges added, ‘We also wish to remind … counsel that no judgment will attain perfection and that not every error is amenable to review.’
The basis of the arguments heard in the application for review in this case had ‘the hallmark of a ground of appeal rather than one for review,’ they said. ‘We cannot indulge ourselves in determining these arguments, for doing so will entail sitting on the appeal of the judgment complained of. It should be underlined that the decision is one of the apex court of the land and therefore final.’ ( (Africalii.org)