Tag Archives: courts

WildlifeDirect’s 2nd Courtroom Monitoring Report 2014 & 2015

A study by WildlifeDirect of wildlife trials in 18 courts between 2008 and 2013 concluded that Kenya was a safe haven for wildlife criminals because of major weaknesses in the legal chain. This second study examines progress made in the wildlife trials in Kenya in 2014 and 2015, after the enactment of the Wildlife Conservation and Management Act, 2013 (WCMA 2013)

CMR

Here is the link to the full report

WildlifeDirect Courtroom Monitoring Report(1)

Kenya’s recent achievements on combating wildlife

Dear Friends, 

 

Despite the impressive achievements that we have made in the fight against poachers and ivory traffickers trough our HANDS OFF OUR ELEPHANTS Campaign I will not be speaking at the London Symposium on international wildlife crime.  As usual, Africa’s story is being told by mostly by people who do not have their feet on the ground and consequently, we risk continuing to fail elephants. We feel that our voice and Africa’s voice must be heard. This post is to simply give you the heads up on Kenya’s achievements and we hope that you will be celebrating with us and supporting our efforts to amplify our success and share it across Africa. Dr. Paula Kahumbu is in London and can be reached on [email protected] for any press interviews.

 

1. WildlifeDirect conducted a court study on wildlife crime that revealed weaknesses in the law, and its enforcement, investigations, prosecution and rulings. For example, 70% of case files lost or missing, 78% conviction rate but less than 4% jail sentences for wildlife offenders, treatment of wildlife crimes as petty offences. Our conclusion was that the lenient handling of wildlife crimes in Kenya was a key player in the escalation of wildlife crimes and attraction of criminal cartels involved in smuggling wildlife products to Kenya. Please see our WILDLIFEDIRECT court study 26.1.14 WildlifeDirect Wildlife crime Report Press release FINAL

 

  1. Enactment of the  new law elevating wildlife crimes to felonies, with punitive sentences on 10th January 2014 – minimum fines of Ksh 20 million (US$ 240k) and life imprisonment for offenders of endangered species including elephant and rhino. See attachment for the Offences and Penalties

 

  • o High profile sentencing of Chinese ivory smuggler for Ksh20 million (US$ 240k)
  • o Review of prosecution and sentence of Ksh1 million of another Chinese ivory smuggler by the Director of Public Prosecutions.

 

  1. Convening of a series of national dialogues on wildlife crime with all the key law enforcement agencies represented in the National Council on the Administration of Justice, as well as private sector through the Judiciary Training Institute and other conservation partners
  2. Development of new standard operating procedures by the agencies as drafted by the office of the Director of Public Prosecutions that refers all elephant/ivory and rhino /horn cases to the DPP, puts chain of custody measures in place, enforces inter-agency cooperation and puts a monitoring system in place and encourage public participation through court users committees, and creates transparency and accountability with sanctions for violations of the SOP.
  3. Consideration by Chief Justice to create wildlife courts starting with all cases in Nairobi moving to a central and high profile court, the Milimani court. We are now lobbying for the serious trafficking and poaching crimes to be heard in special International Crimes Division of the Kenya High Court.
  4. Agreement by Chief Justice to reform the file management system in the court registries.
  5. Agreement by the office of the DPP to prosecute all elephant and rhino cases, and to go after those who traffic and finance the poaching using other legislation including Economic Crimes, organized crime, Proceeds of Organized crime laws.
  6. Agreement by the Kenyan Governemnt to conduct a national ivory stocktake
  7. Appointment of a national task force on wildlife crime to address wildlife security system – this was a recommendation that we made a year ago to the National Economic and Social Council in February 2013.

Please share widely.

 

 

 

 

WildlifeDirect launches wildlife crimes report for Kenya

Dear Friends,

We would like to share a report on the outcomes of wildlife crimes in Kenyan courts. We completed this report this week.

Download the WILDLIFEDIRECT court study 26.1.14

cover image

Here are some highlights

Executive Summary

This report is based on a survey conducted in May and June 2013, which looked at court records in eighteen courts adjudicating on wildlife related crime. The offences involved killing wild animals and/or trading in their products. The aim of the study was to examine the files and analyse outcomes of those cases with a view to determining how legislation in Kenya was being implemented in combating wildlife crime. The study focused on the judicial outcomes of elephant and rhino related offences, but crimes involving other species were also considered.

Between January 2008 and June 2013, a total of 743 pending and closed wildlife related cases were registered in criminal registries of law courts in Embu, Isiolo, Kajiado, Karatina, Kerugoya, Makadara (Nairobi), Makindu, Maralal, Meru, Mombasa, Nakuru, Nanyuki, Narok, Nyahururu, Nyeri, Rumuruti5, Voi, and Wajir towns. These towns were chosen because of their proximity to key conservation areas including Amboseli, Isiolo, Laikipia, Maasai Mara, Samburu and Tsavo as well as major ports through which wildlife trophies are known to be trafficked. The magistrates’ courts in these towns have jurisdiction falling within the target ecosystems. All cases are brought to court by the Kenya Police Service and/or the Kenya Wildlife Service and most are prosecuted by the Police.

A major finding of the study was that in total, only 4% of offenders convicted of wildlife crimes went to jail. In cases of offences against elephants and rhinos which can potentially attract jail sentences of up to 10 years, only 7% of offenders in this category were jailed. Though there were frequent news reports of KWS officers being arrested for involvement in these crimes, the study did not find a single verdict that highlghted this problem.

overall wildlife crimes

The study clearly showed that wildlife related crime in Kenya is treated as a misdemeanor or petty crime and is ‘mismanaged’ within the Kenyan court systems. Of the 743 cases registered that were part of the study, 70% of the case files were reported missing or misplaced in the courts. Only 202 files were available to the study team for perusal, and these were of cases against 314 offenders that had been concluded. 224 offenders (78%) were found guilty of crimes ranging from illegal hunting, illegal possessions of weapons with intent to kill animals, trespassing in protected areas, illegal possession of wildlife trophies, dealing/ trafficking in wildlife etc. No case file could be found for ivory or rhino horn trafficking in Mombasa despite frequent news reports of ivory seizures in the Port of Mombasa and allegations that Mombasa is one of the world’s most notorious ports for ivory trafficking. In Nairobi’s Makadara Court which deals with airport arrests, suspects were exclusively foreign – mainly nationals of Asian origin. All pleaded guilty but only one defendant received a jail sentence of six months in June 2013. During the period of the study, criminals were consistently given lenient sentences and fines well below the maximum of KES 40,000/= (approx USD$ 460).

composition of species

It is also apparent that poor file and case management is hindering the prosecution of wildlife related crime and that the full might of the existing law is not being bought to bear on offenders. There is a huge financial incentive for non-compliance which has led to a culture of impunity amongst the criminal fraternity and even within the government departments responsible for protecting these national assets. If this impunity is not stopped, Kenya may be viewed as a safe haven for local, as well as organized international wildlife traffickers, poachers and dealers.

RECOMMENDATIONS

 

1.     Office of the Director of Public Prosecutions (ODPP) to develop and/or adopt Standard Operating Procedures to allow sufficient time for investigation and application of appropriate laws associated with endangered species like elephants and rhino. Currently, cases of wildlife related offences are charged and disposed of by police prosecutors and are not always reported to KWS or the ODPP. As a result, poor charging decisions are rife, ancillary orders such as forfeiture are rarely applied for and sentencing powers are not fully utilized possibly through lack of awareness by police prosecutors of what is available.

 

2.     Office of the Director of Public Prosecutions (ODPP) to be responsible for charging decisions on all rhino, elephant, rhino horn and ivory cases. KWS prosecutors are gazetted to prosecute under the Wildlife Conservation and Management Act (Cap 376 of 1989) while the ODPP can prosecute under other Acts such as the Firearms Act, the Proceeds of Organized Crime Act (POCA) and (POCAMLA) or Money Laundering Act.

 

3.     Chief Justice (CJ) to assign a dedicated judge and court in each of the conservation areas and together with the Attorney General, CJ and Director of Public Prosecutions (DPP), seek agreement to take judicial notice that poaching offences are ‘organised criminal activities’, and support ODPP with adequate capacity to prosecute these under the full range of laws.

 

4.     The National Council of the Administration of Justice (NCAJ) to adopt and implement rules for streamlining wildlife trials to achieve interagency cooperation. With the enactment of the new Wildlife Act, it is foreseeable that there will be an increase in the number of trials relating to wildlife offences. The NCAJ should agree upon and implement rules for streamlining the progress between first appearance and the conclusion of the case and avoid unnecessary delays.

5.     Chief Justice to issue Sentencing Guidelines. Sentencing patterns are haphazard across the country and there is currently no consistency between courts. With the new wildlife law and possible increase in prosecutions, magistrates will need guidance on the task of sentencing e.g. aggravating features, value and quantity of the trophy, whether the defendant was in a position of authority etc.

6.     Chief Justice to issue a practice direction to the judiciary identifying compelling reasons for withholding bail in offences associated with endangered species like elephants and rhino. Bail is currently issued on a haphazard basis across the country and is hampering wildlife prosecutions.

7.     An NGO structure to support wildlife investigations and prosecutions needs to be established. In order to address the gap between law and implementation, a specialized NGO structure that collaborates closely with Government on investigations, arrest operations and prosecutions of wildlife traffickers should be established. This structure would fight corruption within the enforcement and justice system, ensuring good governance and transparency.

8.     Government to authorise an independent annual stock take and audit of all ivory and horn stockpiles, exhibits and movement of exhibits currently in Government custody. Wildlife trophies that have been confiscated are handed over to the Kenya Wildlife Service. Allowing an independent body to undertake a stock take and audit of the same would reduce loss of exhibits.

9.     Kenya Wildlife Service to transform its relationship with communities and private sector in line with provisions in the Constitution of Kenya, and empower citizens to participate in the fight against wildlife crime by encouraging them to act as independent court monitors and through the creation of a wildlife reporting hotline. The role of ordinary Kenyans is crucial and under-utilized in the fight against poaching and trafficking.

10 Chief Justice should fast track reforms in court registries on the establishment of an efficient and effective standardized case file management with rapid file call-up system (preferably digitized