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