Why court endorsed businessman''s pangolin scales export
Jun 12, 2015
The legal battle over the export licence for pangolin scales for businessman Smith Ewa Maku, was put to rest recently when the court endorsed the export and dismissed a suit filed by environmental lobby Greenwatch.
By Andante Okanya
The legal battle over the export licence for pangolin scales for businessman Smith Ewa Maku, was put to rest recently when the court endorsed the export and dismissed a suit filed by environmental lobby Greenwatch.
In the judgement of Justice Elizabeth Musoke delivered on June 5, at the civil division of the High Court in Kampala, she gave reasons why Greenwatch's suit could not hold.
In the suit filed this year on January 21, Greenwatch contended that Uganda Wildlife Authority(UWA)was promoting illegal trade in endangered wild life.
This accordingly vacated the interim order issued by the deputy registrar of the court on March 2, 2015, which blocked the issuance of the licence pending the outcome of the verdict.
The endorsement allows Maku to sell off all his legally acquired stock from UWA stores, as there is no legal blockade.
On March 24, court allowed Maku to partner UWA and battle Greenwatch, after he petitioned, asserting that his economic rights were under threat, because he had been excluded as a defendant.
The pangolin, similarly referred to as a scaly anteater, have large, protective keratin scales covering their skin.
The scales are used for making medicines and bangles. The biggest market in Asia, is found in China. Occasionally, they are used as a substitute for ivory
The lobby had alleged that live pangolins are killed to fuel the lucrative trade. Greenwatch premised its query on the New Vision feature story published on January 21, 2015.
The story stated that UWA was in the process of issuing an export licence to Maku and his company Smico Skin Craft Industries Limited for export of seven tonnes of pangolin scales, valued at $4.2m(sh11b).
But the judge pronounced that Greenwatch was speculative, and did not adduce proof to back its allegations that pangolins were being killed to feed the trade.
"It is true that the plaintiff has not adduced any evidence to substantiate its allegation that the licence issued involved the export of live/hunted pangolins or that pangolins are killed for that purpose, nor has sufficient evidence been adduced to show that the defendant's actions were in contravention of the law. I must say most of the plaintiff's allegations are merely speculative and not backed up with evidence,' the judge stated.
The judge explained that in law, a fact is said to be proved when court is satisfied as to its truth. That the evidence by which that result is produced is called the proof.
In law, the general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute.
In written submissions by Greenwatch lawyer Samantha Atukunda, she asserted that UWA actions were unjustified, as is it contravened statutory provisions under the law.
She cited Articles 2, 39, and 237 of the Constitution, section 3 of the National Environmental Act, sections 2, 3(1) of the Uganda Wildlife Act, as well as the first schedule of the Game Preservation and Control Act.
Greenwatch asserted that to obtain seven tonnes of pangolin scales, an equivalent of 36,550 pangolins must die.
The lobby lamented that the issue of an export licence for such a large consignment is harmful to their survival.
But in reply, UWA's legal team in partnership with Maku's team of legal experts, downplayed Greenwatch's submissions, saying Maku's collection of game trophies of pangolin scales were legally gathered from pangolins that die from natural causes, and that there is no authorisation to kill or hunt pangolins.
UWA further justified its actions, saying the issuance of the licence is well within its statutory mandate under sections 29 and 30 of the Wildlife Act and Article 245 of the Constitution.
"It is averred that the rationale for issuance of the licence is to ensure that wildlife resources are utilised sustainably under the supervision of the defendant in fulfillment of the principle of sustainable development," UWA and Maku's legal team submitted.
UWA lawyers submitted that Maku's collection is for old trophies legally acquired from UWA stores, having been collected since the 1960s.
UWA executive director Dr Andrew Seguya swore an affidavit to the effect that the export of pangolin scales is legal and poses no danger to wildlife population, since stringent guiding measures are in place for sustainability.
Judge's advice and observation
Justice Musoke advised UWA to step up measures and formulate plans and measures with a view to ensuring ecological and environmental security.
She noted that on the international market, ivory took centre stage of high demand but that the stakes have risen as pangolin scales have closed in.
Maku fact file
The businessman and investor in wildlife is a recipient of the President's Export Award 2002. He received a certificate of recognition for emerging among the top three exporters for arts and crafts.
Maku is a holder of class D licence for trade in wildlife and wildlife products. Section 29 of the UWA Act cap 200 provides for six classes of wildlife user rights(licence).
Under sections 29 and 31 of the act, the UWA executive director is mandated to issue wildlife user rights to any company that makes an application.
Maku believes the case was filed in bad faith by mischief makers with intentions of malicing Maku's legal business and to discredit the leadership of UWA under the stewardship of Dr Seguya.
Other than being an investor, he is a consultant in wildlife trophies. In 1968, Maku was trained by Jonas Bros of Seattle, USA. He also trained in Tanzania. He formed Smico in 1973.
He is a taxidermist, furrier and artisan by profession. Maku was a former employee of the defunct Uganda Wildlife Development Corporation Hunting department in the 1970s
A taxidermist is an expert in the art of preparing and preserving the skins of animals and of stuffing and mounting them in lifelike form. A furrier is a person who sells or makes repairs, alters, or cleans fur garments.
Section 29 of the UWA Act cap 200 provides for six classes of wildlife user rights(licence) Class A is for hunting, B for wildlife farming, C for wildlife ranching, D for trade in wildlife and wildlife products.
Class E is for using wildlife for education and scientific purposes, while F is for general extraction.
Anybody permitted can transact business according to the terms and conditions in the act. Giant pangolins enjoy legal protection.
International law
According to the Convention on International Trade in Endangered Species of wildlife fauna and flora(CITES), all species were included ion appendix II on February 16, 1995.
The International Union for Conservation of Nature(IUCN), the red list category is vulnerable.
Under Uganda law, the first schedule part A, that is animals not to be hunted or captured throughout Uganda except under special permit(wildlife user right).
The population of manis gigantia(giant pangolins) is included in appendix II of CITES, following a decision taken in 1995 by a conference of parties to CITES.
"This means that the parties to CITES consider the population as not now being threatened with extinction. As such, international commercial and non-commercial trade in such is now allowed," Maku says.
According to Article IV of CITES, management authority shall only grant an export permit when it is satisfied that the proposed product was obtained in accordance with national laws.
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