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Judge faults wildlife laws

Mzuzu-based High Court judge Dingiswayo Madise has faulted Section 110 of the National Parks and Wildlife Act, saying the provision is unconstitutional as it removes the discretion of the courts and violates rights of suspects to fair trial.
Briefly, the section provides that anyone found in possession of specimen of protected species such as ivory shall be guilty of an offence punishable by a fine of K100 000 or imprisonment of 10 years provided the fine shall not be less than the value of the species.

Kaphale: Judges are at liberty
Kaphale: Judges
are at liberty

But in a judgement seen by ¬The Nation, Madise said the section cannot be applied as, in its current wording, undermines the freedom of the courts to rule on cases and violates the Constitution.
Speaking in an interview on Wednesday, Attorney General Kalekeni Kaphale said most of the laws were made before the country’s Constitution, hence existence of mandatory laws.
However, he said the Malawi Supreme Court of Appeal earlier made a judgement faulting mandatory laws as they affect the courts’ powers to deliver sentences. He said judges are at liberty to make sentences or decide on the case as they are not bound by mandatory laws.
Mwiza Nkhata, associate professor of law at the University of Malawi’s Chancellor College, said on Wednesday that mandatory sentences take away the discretion from the sentencing judge or magistrate and this in turn undermines one’s fair trial.
He said criminal offences are committed under a wide variety of instances and even where the accused are charged jointly, their degree of participation in the commission of the offence will always be different.

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