Elliot Ziwira Senior Writer
The law is the law, whether you are privy to it or ignorant, it is the law. Simple! It is often said, especially by those with the knowhow in interpretation of statutory matters; leaving those with neither means to defend their positions, the clout to influence court decisions nor garb to hide behind, spiked on the guillotine of justice.
Such is the essence of law; such is the two-faced nature of justice! The law ought to be just; to the man of letters and to that of the rule of thumb alike, for violation of principles of justice to all men regardless of clout or lack thereof, defeats the spirit of what constitutes an illegality or a legality.
Yes, ignorance cannot be construed for innocence, because truth in its many facets refuses to be reduced to the rulebook. With every man hitched to his own version of truth, then the lawbook must favour fact, wherein the concept of proof beyond reasonable doubt determines justice.
But then many a time facts do not favour the layman, whose reading or misreading of them leaves him exposed; and that also may well be understood in terms of the law.
If he cannot be excused for his ignorance, then, surely, someone should be there to see to it that the scales of justice do not tilt in his disfavour merely because of his sloppy reading of what could have been put down by others through representation.
It gets curious, however, when those meant to administer the law, and interpret it for him are also ignorant of the same.
Whereas the layman’s lack of knowledge may ditch him at a personal level, misreading of facts on the part of judges, magistrates, prosecutors and lawyers is detrimental to community justice due to precedent issues.
It is against this backdrop that the recent landmark ruling by two High Court judges in Masvingo, spelling out that the mandatory nine-year jail term for anyone found in possession of a pangolin is a misreading of the law, becomes not only an eye-opener, but is telling of how ignorance of statutory matters goes beyond the layman, yet he is the one at the receiving end of such misinterpretation.
This comes hard on the heels of yet another blast aimed at prosecutors from lower courts by two judges at the Bulawayo High Court, whose ire was ignited by dearth of eagerness and purpose in their approach to legal matters, culminating in acquittal of convicted persons on appeal. In the first instance, Justices Garainesu Mawadze and Joseph Mafusire ruled that suspects have been improperly jailed for nine years because of misreading of Section 128 of the Sixth Schedule of the Parks and Wildlife Act read with Section 45 (1)(b) and 45 (2) of the same Act.
Quashing the nine-year jail term imposed on Tatenda Mhango, Brighton Ngwenyama and Kudzai Ravanga Shava by a Masvingo magistrate and replacing it with a three-year sentence or a level eight fine of $500, the learned judges bemoaned misinterpretation of the law, especially the Sixth Schedule of the Parks and Wildlife Act, which has seen scores of suspects being wrongly sentenced.
The pangolin, according to the Act, is one of the 24 protected animals, whose possession or slaughter attracts a three-year jail term or $500 fine under Section 45 (1)(b) and 45 (2).
The misinterpretation of the law emanates from Section 128, according to Justices Mawadze and Mafusire, which states that regardless of any other section in the Act, whoever commits a crime involving protected animals, is liable to a mandatory sentence of nine years.
The gap in the law, however, as the learned judges observed, is that neither pangolin, nor any other animal save for the rhinoceros, is specifically mentioned by name in Section 128 to attract the mandatory sentence of nine years.
In concurrence with Justice Mafusire, Justice Mawadze notes in his ruling: “It is, therefore, my considered view that as the law stands, hunting or possession of a pangolin does not warrant the special penalty provided for in Section 128 of the Act, until the minister specifies the pangolin by name or in the Statutory Instrument.
“This means, therefore, that in the absence of such a Statutory Instrument, the sentence of nine years imposed by the court is incompetent and should be set aside.”
In view of the landmark ruling, there are valid questions that then arise: What will happen to all those persons, ignorant of the law or otherwise, who wallow in prison because of misreading of the law on the part of members of the Judiciary, particularly involving specially protected animals like the pangolin?
Where there is no consensus between the Legislature and the minister responsible for the crafting of the Statutory Instrument that should give clarity to the Act vis-à-vis the mandatory sentence of nine years that magistrates in the lower courts, where cases involving protected animals are tried, seem to be fond of imposing notwithstanding the vagueness of the Act, what will become of justice?
Who pays for the ignorance of administers of the law in a world where lack of knowledge is considered not an excuse?
There is need, therefore, for clarity in statutory matters, so that they do not impede justice where, as in the words of Bertolt Brecht (1898-1956) in “The Threepenny Opera”, the law is “made for one thing alone, for the exploitation of those who don’t understand it.”
As Aristotle avers “even when laws have been written down, they ought not always to remain unaltered.”
Indeed, for the good of justice, since laws are not cast in stone, they should be constantly visited to determine if they remain in tandem with the dictates of the community whose behaviours they are meant to regulate. Many people have been caged for many years for crimes they could not only have avoided had the law been spelt out correctly to them, or had they the means to appeal their sentences to higher courts. It is worth the while to reflect on Justices Maxwell Takuva and Thompson Mabhikwa presiding over criminal appeals at the Bulawayo High Court, who berated prosecutors in the magistrates’ courts for their lack of understanding of the law, which they are supposed to justly administer.
In agreement with Justice Mabhikwa, Justice Takuva decried: “There is laxity in terms of prosecution in the lower courts, which in most cases results in concessions and subsequently acquittals when the matters are brought here on appeal.
“In some cases, you find that exhibits are not even produced in courts, which in itself is a reflection of insouciance (lack of concern) and poor prosecution. In fact, they lack thoroughness in handling matters.”
Where ignorance of the law, or lack of eagerness in its administration comes into play, there should be mechanisms to protect the poor layman, instead of simply condemning him for unknowingly committing crimes that may be necessitated by the desire to feed the family on a meaty relish rather than wanton disregard of statutes.
After all, the ultimate winner should be justice, for “Law without justice is a wound without a cure” (William Scott Downey in “Proverbs”).