Justice Phildah
Muzofa delivered the judgment, declaring the trial a nullity due to the absence
of requisite authority from the Prosecutor-General (PG), as stipulated under
the Protection of Wildlife (Indemnity) Act.
The officers —
Andrew Masanga, Brighton Makichi and Trynos Rwanga — were accused of fatally
shooting Kurt Rahman in November 2018.
The deceased
and his companions had been unlawfully hunting reedbucks in Darwendale when
they encountered the police. A shootout ensued, leading to Rahman’s death.
The accused
raised indemnity and self-defence as their primary defences, arguing that their
actions were within the scope of their duties as police officers responding to
suspected poaching.
Justice Muzofa
ruled that the prosecution should not have proceeded without explicit
authorisation from the PG.
Section 4 of
the Protection of Wildlife (Indemnity) Act prohibits the arrest or prosecution
of indemnified persons — such as police officers acting in connection with
suppressing unlawful hunting — without the PG’s prior approval.
The judge
stated, “The Prosecutor-General’s authority was a sine qua non (an essential
condition) before prosecution. Without such authority, the arrest and
prosecution are a nullity.”
The court
reviewed the events leading to the shooting, noting that the accused were
responding to a suspected case of cattle rustling but later suspected poaching
upon hearing gunshots near a game park.
The deceased
and his companions had unlawfully killed two reedbucks, loading the carcasses
into their vehicle.
When the police
attempted to intercept them, a confrontation occurred, resulting in the fatal
shooting.
The officers
maintained that they acted in self-defence after being fired upon.
Justice Muzofa
emphasised that the accused were indemnified under the law, as their actions
were connected to suppressing unlawful wildlife hunting.
She dismissed
the state’s argument that the officers were only investigating stock theft,
noting, “What determines the issue is whether at the time they shot the
deceased, they were acting in furtherance of suppressing unlawful hunting.
“The undisputed
evidence is that the deceased and his companions were engaged in unlawful
hunting when the confrontation occurred.”
The judge also
criticised the procedural oversight by the prosecution, highlighting the
importance of adherence to statutory requirements.
Citing
precedent, she noted, “It is a fundamental principle of our law that a thing
done contrary to the direct prohibition of the law is void and of no effect.
The disregard of peremptory provisions in a statute is fatal to the validity of
proceedings.”
While the court
acknowledged the tragic nature of the incident, it concluded that the absence
of PG authority rendered the prosecution invalid.
Consequently,
the accused were acquitted and discharged. Herald
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