Malawi Ivory Trafficker Hit With Prison Term

By Charles Mkoka

BLANTYRE, Malawi, January 9, 2004 (ENS) - A fine of US$55 for ivory trafficking handed to a Malawi woman last September has been increased to one year of imprisonment at hard labor after a judicial review of the light sentence by Malawi's High Court.

The judicial review last week was prompted by a local and international uproar raised by wildlife conservation groups and animal rights activists who feared that the earlier ruling by the Liwonde First Grade Magistrate Court was too lenient to deter anyone from violating the law against ivory trafficking.

African elephants are listed as endangered under the Convention on International Trade in Endangered Species (CITES), a treaty among more than 120 nations, including Malawi, to eliminate the illegal ivory trade.

To deal with the dissatisfaction, the state hired lawyer Gracian Banda of the Malawi Center for Environmental Policy and Advocacy to represent the director of public prosecution at the judicial review proceeding.

A legal aid lawyer represented the trafficker, Maria Akimu, 38, a businesswoman from the Machinga District.

Confiscated elephant ivory (Photo by Rob Barnett courtesy TRAFFIC)

On September 10, 2003, she was convicted in Liwonde Magistrate Court and fined US$55, and in default one year imprisonment with hard labor. She paid the fine on the spot.

In his judicial review decision, Justice Dustain Mwaungulu said the light sentence attracted public concern and media coverage in the context of international interest in environmental conservation and preservation of endangered species.

"Malawi ratified some treaties, and, through appropriate legislative interactions, she is to abide by these international concerns and standards,” ruled Justice Mwaungulu.

Elephants cross Liwonde National Park at sunset. (Photo by Therese Tomasoski)

Justice Mwaungulu acknowledged that the circumstances surrounding the arrest of the defendant and the retrieval of the 10 tusks were dramatic. "Officials of the National Parks and Wildlife department disguised as would-be purchasers of ivory, working on information, met the defendant at her house. They managed to agree to buy some pieces of ivory at the defendant’s house, at his father’s and another person’s house," the judge recounted.

"They eventually arrested the defendant and recovered the ivory but not without huge resistance from the defendant’s neighbours and relations in the course of which an official was badly injured,” he said.

"Looking at the nature of the offense, the circumstances in which the offense was committed, the circumstances of the defendant, the circumstances of the victim, and the public interest, a fine is inappropriate."

"Possessing, trafficking and hunting of trophies should in recent times be considered as a serious offence," said Mwaungulu. "Much of trafficking, hunting and possession of trophies affect animals that are endangered species and many international and regional agreements to which Malawi is a party."

Under these agreements, Malawi must not only take steps that reduce threats to the species but eliminate completely all conduct that threatens those species, and undertake to enhance the ecological balance as environmentalists long have advocated, the judge said.

"There is huge and committed human and financial investment to enable communities around these ecosystems to harness the benefits of preserving and nurturing the endangered species populating these ecosystems, but these grandiose and useful efforts are not achieved through the conduct displayed by the defendant," he said.

The state's lawyer Banda showed that the defendant not only possessed and trafficked in considerable amounts of ivory, said the judge, but also was linked to a well connected network and ivory trafficking syndicate around Liwonde National Park.

Her offense is no small matter as it occurred in "aggravating circumstances,” Mwaungulu said.

The mitigating reasons Akimu gave for why she should not be imprisoned are not matters sentencing courts regard in passing sentence, said the judge. "They are domestic concerns. Offenders must factor the risk to family when embarking on a crime. All offenders, fortunately or unfortunately, have families. Ultimately the sentencing court must regard the public interest in preventing crime."

International elephant protection was upheld by the Malawi High Court in Blantyre. (Photo courtesy Malawi Judiciary)

Liwonde National Park Manager Gervaz Thamala, who suffered a deep head wound during Akimu’s arrest, said, “It’s good that the High Court has given a custodial sentence to the offender."

"If people were asked to pay a fine, they would pay it, because no one is interested to languish in jail. The results would be disastrous for conservation,” Thamala said after the ruling.

In an email update following the case, Banda wrote, “The convict is now in custody, and she was much distressed after the verdict. The judgment provides an excellent review of wildlife law enforcement and the need to ensure that offenders are adequately punished."

Recent incidents of illegal ivory trading in Malawi have raised fears that Malawi is being used as a conduit for raw and worked ivory that is illegally being trafficked to the Middle East and the Far East, although Malawi has been a Party to the CITES treaty since 1982.

In November 2002, a conference of CITES Parties adopted a policy suspending the global ban on ivory trade this year for a one-off sale of ivory stockpiles from three countries - Botswana, Namibia and South Africa. The proceeds of the sale would be used to protect wildlife.

But environmental analysts contend that lifting of the ban to allow Botswana, Namibia and South Africa to dispose of their 66 tons of stockpiled ivory will lead to a surge in poaching and trafficking.

This surge is already evident in Malawi.