Africa-Press – Botswana. A man, who was convicted of unlawful possession of six elephant tusks, Morerwa Mbasera, was on Friday freed from a six and half-year prison term imposed on him by Shakawe Magistrate Court on December 2018.
Mbasera, a Kauxwi native, was convicted of unlawful possession of six elephant tusks and a fine of P20 000 payable on same day or six and half years imprisonment in default of the payment.
Three and half years were wholly suspended for three years on condition that he alongside other co-accused would not commit the same offence.
Mbasera’s failure to pay the fine saw him being imprisoned for the offence.
However, the Court of Appeal (CoA) quashed both the conviction and sentence, thereby acquitting and discharging Mbasera.
A panel, which comprised Justices Leatile Dambe, Jennifer Dube and Tebogo Tau stated that there was no evidence to prove beyond reasonable doubt that Mbasera was in possession of the said elephant tusks.
“With no evidence linking the appellant with the elephant tusks, this conviction cannot be allowed to stand.”
The panel concurred that it was misdirection on part of the magistrate to hold that it was highly unlikely that first accused Moronga Dikore would implicate Mbasera and another unless he knew of their involvement in the tusks.
The appeals court said Dikore made the allegations in the presence of witnesses who were invited by the police to watch the search.
Dikore had also said the tusks belonged to Mbasera and another, so he was holding them on their behalf, the evidence which the appeals court said was admissible against the maker and could not be used against Mbasera at the trial.
Furthermore, the court said during trial, Dikore said it was the police who asked him about Mbasera and he denied ever implicating Mbasera.
Mbasera, alongside other accused, were arraigned on a charge of unlawful possession of elephant tusks, contrary to Section 61 (1) of the Wildlife Conservation and National Parks Act (Cap 38:01) laws of Botswana.
The particulars of the offence were that the accused persons on September 21, 2016 at Kauxwi in the North West Administrative District acting in concert unlawfully had in their possession six elephant tusks valued at P60, 715 and weighing P45, 3 kilogrammes.
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