This
is an application for bail pending appeal in a matter in which the
applicant, Esau Chembe, was convicted of contravening section
45(1)(b)
of the Parks and Wildlife Act [Chapter
20:14]
which relates to possession of ivory.
He
was however sentenced under section 128(1)(b) of this Act, which, in
the absence of special circumstances, imposes a mandatory sentence of
nine years for a first offence where the possession involves the
unlawful possession of trading in ivory or any trophy of a specially
protected species.
He
has appealed against both conviction and sentence, and, accordingly,
seeks bail pending the hearing of the matter.
In
his papers, the applicant addressed the key essentials of bail
pending appeal which hinge on prospects of success; likelihood of
abscondment; potential lengthy delay in hearing the appeal; and the
right to freedom in tandem with the offence.
It
was on prospects of success on appeal that the applicant laid most
emphasis on at the hearing largely on the ground that the issue of
special circumstances was canvassed inadequately by the court and
that in any event the fact that the accused would be sentenced under
this provision was only brought out at the sentencing stage.
Whilst
the accused was represented during the presentation of the State case
in the Magistrate's Court, his lawyer had renounced agency when the
defence case was heard. He was thus a self-actor at the time of his
defence.
Suffice
it to note that the impugned portion of the record dealing with
special circumstances reads as follows:
“SPECIAL
CIRCUMSTANCES
Purpose
explained to accused and understood.
Q.
Did you understand my explanation?
A.
Yes.
Q.
Do you have special circumstances?
A.
Yes.
Q.
Go ahead.
A.
I was trying to fend for my family that is why I committed the
offence. Life is difficult nowadays. I could not pay for the bills,
school fees, and to buy fertilisers.
N.F.S
STATE;
This
does not amount to special circumstances. There are other means in
which accused could have resorted to.”
It
is indeed apparent from the above that what special circumstances
are, as explained by the magistrate, was not captured in the record.
The
State opposed bail on the grounds that there were
no prospects of success against both conviction and sentence since
the evidence led clearly shows that he was in possession of the ivory
in question. The State also fears that he will abscond if he is
granted bail since where there are no special circumstances, the
mandatory sentence is nine years. It was the State's position that
no special circumstances were shown, and that, in any event, even if
the details of what was put forward by the magistrate as constituting
such was not captured in the record, the inference is that they were
explained and deemed understood.
Much,
therefore, depends on the prospects of success against conviction and
sentence in light of the objections raised to the manner in which
special circumstances are captured on record.
The
accused relied on the case of S
v Chaerera
1988
(2) 226 (S) in which the court was of the view that the magistrate
should have gone into detail in explaining special circumstances and
where the matter was sent back to the Magistrate's Court for these
to be properly explained.
Without
the record capturing what it is exactly that was explained as
constituting special circumstances, it would appear to me that the
accused has a point, at least regarding prospects of success on the
sentence, since there is a likelihood that the case may in fact be
remitted back to the Magistrate's Court for the explanation of
special circumstances to be fully captured or the court may decide
that the mandatory sentence was unwarranted.
Also,
purely as obiter
dicta,
whether poverty can repeatedly be said to not constitute a special
circumstance in this country where more than 80% of the population,
for over a decade and counting, continue to lack formal employment,
is arguable. Such an approach would seem to be a blinkered approach
to the reality encountered by ordinary citizens in their quest for
survival since a state of economic collapse in itself fuels
illegality on a massive scale as people try to cope by all means
possible. Whilst criminality can never be excused, the context that
has fuelled it, such as that which currently characterises the local
economic situation, cannot, in my view, be entirely overlooked as a
special circumstance.
The
amount of ivory involved was 4.35kgs said to be valued at $739=
according to the State Outline
– perhaps an indicator “survival-induced criminality.”
In
essence, my view is that the appeal, at least on sentence, is
arguable. However, there would appear to be less prospects of success
on the conviction itself.
One
of the primary considerations in determining bail pending appeal is
whether the accused will serve his sentence if released on bail in
the event of the appeal not succeeding.
On
abscondment, it was argued that he is unlikely to do so as he is of
fixed abode and has lived in Zimbabwe all his life. As the accused
has already been convicted, there is of course a heightened risk of
abscondment in light of the fact that imprisonment still looms as a
possibility. Abscondment is real rather than imagined under the
circumstances since the accused already has a fair idea of what he
can expect to serve should the appeal go against him.
The
amount of bail suggested of $100= pending appeal, is, in my view,
unsatisfactory to allay the real fear of abscondment. Moreover, it
treats the accused as if he still has the presumption of innocence
when he does not. It has to be an amount that will induce him to
return to serve whatever sentence rather than risk the forfeiture of
such sum of money should the court find that the appeal lacks merit.
1.
Accordingly, the applicant is hereby admitted to bail on the
following conditions:-
1.1
That he pays the sum of US$400= (four hundred United States Dollars)
to the Registrar of the High Court in Harare.
1.2
That he resides at 5875 Dzivarasekwa Extension Harare, until the
finalisation of the matter.
1.3
That he reports once every week on Fridays between 06:00am and
06:00pm at Dzivarasekwa Police Station.
1.4
That he shall not interfere with State witnesses until the matter is
finalised.
