Penalties in Botswana’s Wildlife Legislation

Introduction

Penalties under the Wildlife Conservation and National Parks Act and subsidiary legislation involve a  combination of fines and imprisonment.  The Act also provides for administrative penalties including forfeiture, destruction of instrumentalities of crime and cancellation of permits. Under Section 8 of the Wildlife Conservation and National Parks Act, where any animal or vegetation is introduced into a National park, the animal or plant introduced is subject to destruction in addition to fine and/or imprisonment of the offender.

Section 79 of the Act provides for higher penalties for repeat offenders.  Where a person is a repeat offender under the Act, the maximum penalty is to be increased by 50 percent.  Where the offence is in connection with a rhinoceros or elephant, the repeat offence shall be a term of imprisonment without the option of a fine in addition to the imposition of a fine.

Fines

The Act provides for imposition of fines as one form of punishment.  The wording of the Act is such that it is not clear whether the fines are minimum or maximum.  For example, section 11(1) of the Act provides that, “Any person who kills, hunts or captures any animal in a national park shall be guilty of an offence and without derogation from his liability under any other provision of this Act shall be liable to a fine of P10 000 and to imprisonment for 7 years.”  The Act does not use wording such as “not less than,” “minimum of,” “not more than” or “maximum of.”  Section 38(1) of the Interpretation Act (Chapter 01:04 Laws of Botswana) clarifies this situation by stating that where in any enactment a penalty is prescribed for an offence, the penalty shall, in the absence of any provision to the contrary, be deemed to be a maximum and not a fixed penalty.

From the provisions of the Interpretation Act, it is clear that courts have discretion to give a fine that is lower than that prescribed in the Wildlife Conservation and National Parks Act.  The highest fine in the Act is P100,000 for offences against rhinoceros which is approximately $9,300.

Imprisonment

Section 4 of the Constitution of Botswana provides that a person shall not be deprived of his personal liberty save as may be authorized by law, inter alia, in execution of the sentence or order of a court, whether established for Botswana or some other country, in respect of a criminal offence of which he has been convicted.  Imprisonment is therefore a penalty allowed by the Constitution.  However the Penal Code (Chapter 08:01 Laws of Botswana) which is the statute that establishes the code on criminal law in Botswana gives some limitation as to who may be imprisoned.  Section 27(1) thereof provides that the sentence of imprisonment shall not be passed on a person below the age of 14 years.  This is aimed at protecting child offenders from having to be confined in prison.

The Wildlife Conservation and National Parks Act also provides for imprisonment as a penalty.  The wording of the Act is not clear as to whether imprisonment is an alternative to the fine or an addition to the fine.  Section 11(1) for example reads that “…shall be liable to a fine of P10 000 and to imprisonment for 7 years.” The use of the word “and” makes it look like the imprisonment is additional to the fine.  In Moremi and Others –Vs- the State (2011 1 BLR 392 HC) where the two appellants were sentenced by the Magistrates Court to pay a fine of P5,000 or to serve a prison term of 5 years in default of payment of that fine, the State Counsel submitted that the wording of the sentencing section did not empower the judicial officer to impose a term of imprisonment as an alternative.

However, Section 38(2) of the Interpretation Act provides that where a term of imprisonment and a fine are prescribed the penalties may in the absence of any provision to the contrary, be read as permitting the imposition of one or other or both penalties.  The High Court in the Moremi case referred to Section 38(2) of the Interpretation Act and stated that imprisonment was an alternative sentence.  The Penal Code also provides that a person convicted of an offence punishable by imprisonment may be sentenced to pay a fine in addition to or instead of imprisonment.  Further, as per Section 38(1) of the Interpretation Act, the prison term given in the Act, like the fine, is a maximum and the court has discretion to give any amount below that depending on the circumstances of each case.

The highest prison term under the Wildlife Conservation and National Parks Act is 15 years for offences against rhinos.  Other offences involving illegal killing of wildlife, hunting without permits, trade in wildlife and wildlife products and dealing in wildlife trophies carry high prison terms ranging from 5 to 10 years.  According to the United Nations Conventions against Transnational Organized Crime (UNCTOC), a serious crime is defined to mean conduct constituting an offense punishable by a maximum deprivation of liberty of at least four years (Article 2).  Such wildlife offences can therefore be considered to be serious crimes under UNCTOC.

Forfeiture

In addition to fines and imprisonment, the Wildlife Conservation and National Parks Act also imposes forfeiture penalties.[8] Section 75(1) of the Act provides for forfeiture of instrumentalities of the offence.  The Section states that any weapon, trap, animal, vehicle, aircraft or boat used for the purpose of or in connection with the commission of the offence shall be forfeited to the State.

The High Court has held that for an item to be forfeited, it must have been used to commit the offence.  In Oatlhotse –Vs- the State (1995 BLR 381 (HC)), the appellant was convicted and sentenced on a charge of hunting without a license.  The Magistrate ordered that his vehicle be forfeited to the State.  He appealed against the sentence imposed on the ground that the forfeiture order in respect of his motor vehicle was not right because it had not been used in the commission of the offence.

The facts of the case were that the appellant was travelling through a controlled hunting area and gave a lift to his co-accused at the back of his pick-up.  The co-accused was in possession of a gun which he used to shoot and kill two ostriches while the vehicle was in motion.  The appellant stopped the vehicle to inquire about the shots and the co-accused shot another two ostriches and skinned them while the appellant waited.  The appellant agreed to assist in transporting the meat but they were intercepted by wildlife officers who found the ostrich meat and arrested them.

The High Court held that there was nothing to suggest that the appellant had used his vehicle for the purpose of or in connection with the commission of the offence charged and that the appellant had merely given a lift to his co-accused.  In order for the appellant’s motor vehicle to have been liable to forfeiture, the appellant must have actively taken part in the commission of the offence. The killing of the ostriches by the co-accused was an act unrelated to the use of the appellant’s motor vehicle.

An item can be forfeited even where the accused person has been acquitted.  In Dipogiso –Vs- the State (2008 2 BLR 456 HC), the accused person was charged with stock theft and even though he was acquitted, the court ordered that the alleged stolen cattle be forfeited to the state.  The appellant appealed against the forfeiture order, claiming that the evidence showed that he was the person entitled to the cattle.  The High Court dismissed his appeal and held that a forfeiture order could be made even where the accused had been acquitted and such an order was appropriate where, on the facts, the accused was not entitled to the items in issue or did not assert ownership thereto during the trial.

Under the Wildlife Conservation and National Parks Act, the forfeiture order is for all offences under the Act punishable by a fine of P2000 or more.  However, the Criminal Procedure and Evidence Act (Chapter 08:02 of the Laws of Botswana) expands this limitation by providing that if within a period of three months after the conclusion of the trial no application is made for the return of the property, or if the person applying is not entitled thereto the property shall vest in the State (Section 319(1)). By this provision even if the offence under the Wildlife Conservation and National Parks Act carries a penalty of less than P2,000 the instrumentalities of the offence may be forfeited to the state.