empty threat: does the law combat illegal wildlife trade?

Transcription

EMPTY THREAT: DOES THE LAW
COMBAT ILLEGAL WILDLIFE TRADE?
A TEN-COUNTRY REVIEW OF LEGISLATIVE AND
JUDICIAL APPROACHES
Produced by DLA Piper for:
As part of our global pro bono programme I am delighted that we have been able to support the
Royal Foundation of The Duke and Duchess of Cambridge and Prince Harry and United for Wildlife
in producing this important report on the legislative framework regulating the trade of wildlife in ten
key countries. As the report shows, there is still much work to be done to combat illegal trade of
wildlife but we hope it will be useful in assisting United for Wildlife in their invaluable work.
I have great pride in the fact that 55 DLA Piper lawyers across 15 of our offices globally have been
involved in this project. We look forward to hearing the outcome of the London Symposium and
supporting further the outstanding work of the Royal Foundation of the Duke and Duchess of
Cambridge and Prince Harry and United for Wildlife.
Sir Nigel Knowles
Managing Partner
DLA Piper
i
UNITED FOR WILDLIFE
Through his Foundation, His Royal Highness The Duke of Cambridge has brought together
an unprecedented collaboration between seven of the world's most influential conservation
organisations and the Royal Foundation of The Duke and Duchess of Cambridge and Prince
Harry. The partnership, named "United for Wildlife", is a long-term commitment to tackle the
global challenges to the world’s natural resources so they can be safeguarded for future
generations.
The partnership between Conservation International, Fauna & Flora International,
International Union for Conservation of Nature, The Nature Conservancy, Wildlife
Conservation Society, WWF-UK, the Zoological Society of London and the Royal
Foundation will lead the way to substantially increase the global response to major
conservation crises.
ii
DLA PIPER
Our pro bono programme:
As one of the largest law firms in the world, DLA Piper develops, manages and delivers pro bono in
size, scale and scope unlike any other law firm. With more than a dozen dedicated lawyers around the
world developing and managing our pro bono projects, and more than 4,200 international lawyers
ready to provide pro bono services, we deliver seamlessly coordinated global projects as well as
individualised one–on-one services with extraordinary dedication and commitment.
We are concerned about access to justice and rule of law around the world. Our global pro bono
practice acts for and with some of the world's leading global charities, aid agencies, NGOs, UN
agencies, governments and academic institutions around the world. DLA Piper’s commitment is
unparalleled and every lawyer makes a serious and sustained effort to do pro bono work. In 2013, the
firm devoted over 200,000 hours to pro bono initiatives, making us one of the largest providers of pro
bono legal services in the world.
As a thought leader in the creation and delivery of pro bono services, we engage in innovative pro
bono projects, maintain a leading pro bono practice and help build a pro bono culture in the legal
profession around the world. We are noted for our depth in areas such as juvenile justice, heirs’
property law, human rights, non-profits and charities, and poverty law.
New Perimeter - our nonprofit organisation:
New Perimeter is a nonprofit organisation established by DLA Piper to provide pro bono legal
assistance primarily in developing and post-conflict countries. Founded in 2005, New Perimeter
draws on the skills and talents of our lawyers globally to support social and economic development, as
well as transparent and sound legal institutions.
To maximise our impact, we send teams of lawyers in-country to work alongside our partners and
clients whenever possible. We focus our work on legal education designed to strengthen a country's
legal system and improve the skills of its judges and lawyers, women and children’s rights, access to
justice and law reform, environmental protection, economic development and food security.
Read about our global pro bono programme at www.dlapiperprobono.com and our work though New
Perimeter at www.newperimeter.org.
iii
i
Table of Contents
EXECUTIVE SUMMARY .................................................................................................................... 1
KENYA .................................................................................................................................................. 5
1.
EXECUTIVE SUMMARY ....................................................................................................... 6
2.
PRINCIPAL LEGISLATION.................................................................................................... 7
3.
PENALTIES ............................................................................................................................ 12
4.
ANCILLARY LEGISLATION ............................................................................................... 14
5.
JUDICIAL PROCESS AND CAPACITY............................................................................... 19
6.
CONCLUSIONS ..................................................................................................................... 30
DLA PIPER CONTRIBUTORS........................................................................................................... 33
iv
EXECUTIVE SUMMARY
By
Michael S. Lebovitz
Heidi Newbigging
Alice Puritz
Project Leaders and General Editors
DLA Piper - London
In 1975, the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) entered into force through ratification or accession by ten countries. Today, 179 countries are
Parties to CITES, and yet illegal trade in wildlife has continued to proliferate to the point where it
ranks behind only illegal trafficking in drugs, guns and human beings in the value of the illegal trade.
Each of the 179 Contracting Parties has some form of principal domestic legislation implementing
CITES and setting out offences relating to the illegal trade in wildlife which are subject to prosecution
through some form of domestic judicial process. Many Contracting Parties also have ancillary
legislation that can be used to prosecute illegal trade in wildlife. Examples include legislation with
respect to money laundering, illegal use of weapons and anti-corruption legislation.
Numerous factors are often cited as drivers of the proliferation of illegal trade in wildlife including
wealth, poverty and cultural demand. Strong principal and ancillary legislation and enforcement
through an effective judicial process act as deterrents to this criminal activity. By contrast, weak or
limited legislation enforced on a haphazard basis by a judiciary with limited experience or capacity to
prosecute not only fails to deter but furthers an environment where those engaging in such activity are
emboldened. Notwithstanding the number of contracting parties to CITES, work still needs to be done
to strengthen legislation around the world and improve prosecutorial and judicial capacity and
processes.
DLA Piper was engaged by the Royal Foundation of the Duke and Duchess of Cambridge and Prince
Harry (the "Royal Foundation") on behalf of the United for Wildlife partnership to review and
evaluate the state of legislation and judicial processes with respect to illegal trade in wildlife in ten
countries: Cameroon, China, Democratic Republic of Congo, Kenya, Malaysia, the Philippines,
Tanzania, Thailand, Uganda and Vietnam. A team of 55 lawyers from 15 DLA Piper Offices around
the world reviewed and analysed the relevant principal and ancillary legislation and domestic
prosecutorial and judicial processes, using this information to produce a report for each country.
Following an executive summary, each country report includes an overview of the principal
legislation on illegal trade in wildlife. This is also the domestic legislation implementing CITES. The
reports then discuss the criminal penalties (fines and imprisonment) associated with illegal trade in
wildlife, with an emphasis on whether such penalties cause the crime to be considered a "serious
crime" within the meaning of the United Nations Office of Drugs and Crime ("UNODC"). The reports
also review relevant ancillary legislation that can be used to prosecute crimes associated with the
illegal trade in wildlife. Each report then assesses the local judicial process and capacity to enforce the
domestic principal or ancillary legislation. The reports then conclude with observations and
recommendations based on the findings of the country team.
1
The reports reveal a host of weaknesses. Except with respect to Kenya, whose new principal
legislation is untested, weaknesses exist in the principal legislation of each of the countries analysed.
Substantial inconsistencies exist in terms of the penalties for violating local law. Several reports
discuss limitations regarding prosecutorial power or experience. Every report identifies issues with
judicial procedure and capacity. The only consistent theme in the country reports is that significant
work needs to be done in every country in order to effectively tackle the illegal wildlife trade.
Principal Legislation
Each of the countries analysed is a Party to CITES and each has enacted principal legislation
implementing the Convention into domestic law.
Perhaps a bright spot in our analysis of principal legislation was Kenya's recognition that its principal
legislation was weak and antiquated, leading to the enactment of its new Wildlife Conservation
Management Act. In most of the other countries, the state of principal legislation is mixed at best. In
some countries, principal legislation is ineffective because important provisions must be implemented
through separate regulations which have either not yet entered into force or do not benefit from public
transparency. Similarly, the principal legislation in Tanzania called for the establishment of an
autonomous agency to administer that law. Five years since the new principal legislation entered into
force, the agency has not been formed.
Jurisdictional and bureaucratic barriers are also prevalent. In China, enforcement of principal
legislation is under the jurisdiction of a national agency, but the budgets of the local divisions of that
agency are set by local officials who may have competing interests. In Malaysia, principal legislation
varies by state resulting in a lack of uniformity. Similar issues exist in the Democratic Republic of the
Congo ("DRC"), where implementation of principal legislation is left to provincial governments.
Penalties
A law will act as a deterrent only where the penalties for violating that law are proportionate to the
prohibited activity. In other words, the penalty for violating the law should be such that the crime is
viewed as a serious crime. For the purposes of our analysis, we used the UNODC benchmark for a
"serious crime" as one that carries a minimum prison sentence of four years.
Violation of principal legislation is a serious crime in most of the countries analysed. In China,
sentence of life imprisonment and a death sentence were both upheld in the case of illegal hunting of
pandas. Notable exceptions exist though including Cameroon, the DRC and, in certain cases,
Thailand.
Many reports noted a lack of consistency in setting the penalty by the prosecution or the judge. Where
there is prosecutorial or judicial discretion, wide variations occur. There is a strong need for clear,
unambiguous sentencing guidelines. Moreover, where there are inconsistencies in principal legislation
at the local or provincial level, there are also inconsistencies reported with respect to penalties.
Ancillary Legislation
Significant ancillary tools exist in most countries to assist in the prosecution of illegal trade in
wildlife. These tools include legislation relating to money laundering, use of weapons, racketeering,
corruption and customs violations. Even where violation of principal legislation would be considered
a serious crime, in most countries, violations of ancillary legislation often carry harsher sentences.
Ancillary legislation is a useful supplement to the enforcement of principal legislation. Kenya, for
example, has decided to prosecute illegal wildlife trade under its legislation relating to anti-money
laundering, organised crime and terrorism.
2
The use of ancillary legislation depends strongly on the willingness of a prosecutor to use that tool
and the experience of a judge in prosecuting illegal wildlife trade under that legislation. Many reports
discussed this weakness.
Ancillary legislation and related tools can also be used to curb demand. This can be seen in China's
ban on the use of rhinoceros horns and tiger bones in medicinal wine, powder and traditional
medicines.
Judicial Process and Capacity
Each report reviews the judicial process for prosecuting illegal wildlife crime. Many reports describe
specific prosecutions and, where available, statistics on successful prosecution. As noted above, the
lack of sentencing guidelines gives considerable discretion to both the prosecutor and the judge. The
reports include several examples of judicial discretion leading to lower or suspended sentences, or
failure to impose mandatory fines.
As can be expected with the developing countries included in our study, the most significant issue
relates to prosecutorial and judicial capacity and resources. Prosecution staff and judicial offices are
often underfunded, whether because of budget constraints or because of a political unwillingness to
provide the necessary resources. Moreover, illegal wildlife crime is often hard to prosecute because of
the lack of resources needed to secure or evaluate forensic evidence. Such evidence is often necessary
to distinguish between a "wild" and a "domesticated" animal.
Some reports noted the lack of a reporting system on the prosecution of illegal wildlife crime.
Publication of judicial decisions and maintaining statistics on illegal wildlife crime prosecutions
would lead to increased uniformity in sentencing and increased likelihood of successful prosecution.
Observations and Recommendations
As noted at the outset of this summary, and as will be readily observed from a reading of the country
reports, considerable important work needs to be done to strengthen the enforcement of wildlife crime
legislation around the world. Each report contains a number of observations and recommendations
that are applicable to the country under discussion. From these, a number of general recommendations
arise as follows:

Model legislation - Many countries have amended or updated their principal legislation. Kenya
updated its principal legislation in January 2014. Tanzania's legislation is also relatively new. As
public pressure increases around the world to address the proliferation of illegal trade in wildlife
more effectively, we anticipate that more countries will continue to update their domestic
legislation. Greater consistency could be achieved by the development of a model wildlife act that
would be used as a basis for countries as they update domestic legislation.

Model sentencing guidelines - Coupled with a model act, model sentencing guidelines could also
be developed as a basis for the establishment of domestic sentencing guidelines for wildlife
crimes.

International database - Given the lack of resources in many countries, an international database
could be developed for the publication of judicial decisions and prosecution statistics relating to
wildlife crimes.

Multilateral initiatives/exchange of information - There are numerous opportunities for countries
to collaborate on legislative and judicial initiatives, particularly in those countries that share a
3
border, such as Kenya and Tanzania. These could include cooperation on a species-by-species
basis where countries have similar issues with respect to enforcement. For example, Kenya and
Tanzania could cooperate with respect to illegal trade in ivory, partnering perhaps with a
"demand" country such as China.

Prosecutorial and judicial training - Standardised training modules could be developed and made
available online or delivered locally or regionally. The CITES Secretariat, the international
organisation dedicated to monitoring wildlife trade, TRAFFIC, or another entity or organisation
could maintain a database of training programmes for access by prosecutors and judges around
the world.
Although our analysis covers only ten countries, we have no doubt that the issues summarised above
and discussed in detail in our reports are equally relevant in a substantial number of the 179 CITES
member countries. We are also conscious that the above recommendations all require a great deal of
resources, both economic and human, to achieve their implementation. We stand ready to work with
the Royal Foundation and United for Wildlife to continue this important initiative and assist with
further research and the implementation of the above recommendations in order to take further steps
to combat the illegal wildlife trade.
4
KENYA
Team Leader and Editor - Alex Monk - DLA Piper
Team Members - Ashley Anderson, Anna Furness, Victoria Rhodes, Ella Russell - DLA Piper
5
1.
EXECUTIVE SUMMARY
Wildlife-related crimes have been widespread in Kenya, with 95% occurring outside the
National Parks protected areas.1 Kenya has been criticised in open forums and particularly at
the CITES Conference of the Parties in March 20132 for its failure to tackle wildlife crimes
effectively. Kenya, Tanzania and South Africa have been identified as the three countries of
greatest concern for trafficking of ivory out of Africa and it has been reported that more ivory
is moving through and out of Kenya, Tanzania and South Africa at the present time than any
other countries in Africa.3
There is recognition at an international level that co-operation across the African nations,
particularly those that share areas of National parkland such as the Amboseli-Kilimanjaro/
Magadi-Natron landscape would benefit wildlife conservation efforts.4 Whilst there has been
some progress in this regard, with a joint census operating between Kenya and Tanzania,5
there can be little doubt that the effectiveness of efforts to preserve wildlife would be helped
by more co-operation, particularly between adjoining African states.
A new piece of primary legislation, the Wildlife Conservation and Management Act, 20136
("New Act"), came into force in Kenya on 10 January 2014 following criticism of Kenya's
previous law as "weak and antiquated".7 The New Act contains more severe punishments for
wildlife offences than the previous legislation including creating four offences which are
punishable by imprisonment, and which could potentially be classified as "serious crimes"
within the meaning of the United Nations Office of Drugs and Crime ("UNODC")8 (meaning
conduct constituting an offence punishable by a maximum deprivation of liberty of at least
four years or a more serious penalty). However, it should be noted that there is an alternative
punishment of a fine for each of these offences, which may mean that these are not in fact
classified as serious crimes. The view that the legislation does not in fact create offences
classifiable as "serious crimes" may be supported by the fact that the practice in Kenya has
been to impose the fiscal penalty in preference to the custodial penalty, including in relation
to the first reported prosecution under the New Act, which resulted in a fine.9 The levels of
fines which may be imposed under the New Act, whilst not as severe as a custodial sentence,
1
D. Kamweti, D. Osiro and D. A. Mwiturubani 'Nature and Extent of Environmental Crime in Kenya' (2009) accessed between 13 and 27
January 2014, available at:
http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=3&ved=0CEUQFjAC&url=http%3A%2F%2Fmercury.ethz
.ch%2Fserviceengine%2FFiles%2FISN%2F111770%2Fipublicationdocument_singledocument%2Fecb23d15-68d1-400e-904a67d56b50aed6%2Fen%2FM166FULL.pdf&ei=D7vfUrmDLKOV7Qbp4ICoBA&usg=AFQjCNFKMTVT-nAJP3kqdvOqZuGlc9Qayg
2
Kibiwott Koross, "Kenya: CITES Convention ?Fails to Protect the African Elephant?" 20 March 2013, accessed between 13 and 27
January 2014, http://allafrica.com/stories/201303201434.html
3
C.Nellemann, R.K. (2013). "Elephants in the Dust", accessed on 27 January 2014 from
http://www.unep.org/publications/contents/pub_details_search.asp?ID=6303
4
Tanzania Gateway, GTZ Wildlife Programme Tanzania,
http://www.tanzaniagateway.org/docs/gtz_wildlife_programme_tanzania.pdf
accessed
between
13
and
27
January
2014,
5
Kenya Wildlife Service, "Kenyan and Tanzanian wildlife experts in joint aerial census in Amboseli", accessed between 27 January and 3
February 2014, http://www.kws.org/info/news/2013/24april2013tanzania.html
6
Legislation accessed in January 2014 available at:
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/WildlifeConservationandManagement%20Act2013.pdf
7
WWF, "Statement of Elephant Killing in Kenya", accessed between 13 and 27 January 2014, https://worldwildlife.org/pressreleases/statement-on-elephant-killing-in-kenya
8
Article 2, United Nations Convention Against Transnational Organised Crime and the Protocols Thereto. Accessed on 29 January 2014,
http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
9
BBC News "Togo arrests three over huge ivory haul" 29 January 2014 (accessed 29 January 2014, 13.49 GMT)
http://www.bbc.co.uk/news/world-africa-25939731
6
are significant in the context of an average income of just under US$1,800 per annum in
Kenya.
As well as the primary offences, the New Act also creates ancillary offences which are aimed
at discouraging those who assist poachers and traffickers. The New Act creates rights for
members of the public, including compensation for crop and property damage by wildlife, an
obligation to offer public engagement, including public consultation in relation to the creation
of national parks and reserves, and the right for members of the public to petition the court
directly in relation to offenders. Whilst the effectiveness of the New Act is yet to be proven, it
is a positive step following the criticism of the previous regime.
Kenya has been facing challenging issues in recent years including corruption and a
significant lack of resources to provide an effective state prosecution service and judiciary.
This has undoubtedly hampered efforts to effectively prosecute and sentence individuals for
wildlife offences. Whilst in 2013 there have been examples of custodial sentences handed
down to individuals convicted of wildlife offences, this does not appear to be a sentence
which is widely or consistently imposed by the magistrates' courts in Kenya. In addition,
these prosecutions were under the old legislation, with the New Act yet to be truly tested.
Although Kenya’s Government permits prosecution of crimes associated with or arising out
of the illegal wildlife trade under ancillary legislation (such as dealing with the proceeds of
illegal trade in wildlife under anti-money laundering laws), it seems the judiciary has been
reluctant to prosecute under such ancillary legislation. Additionally, under the New Act,
Kenya increased penalties for wildlife crimes so that they reflect penalties under ancillary
legislation more closely, although not entirely. Accordingly, although prosecutors may
consider bringing charges under ancillary legislation in relation to crimes associated with the
illegal wildlife trade, it is unclear whether this has much impact on the illegal wildlife trade in
Kenya in practice.
2.
PRINCIPAL LEGISLATION
2.1
Legislation summary
2.1.1
The Wildlife (Conservation and Management) Act 197610 ("the 1976 Act")
The 1976 Act was the principal domestic legislation in this area until the New
Act came into force. It was implemented to consolidate wildlife legislation and
was updated at various points.
Key elements of the 1976 Act included the establishment of the Kenya Wildlife
Service ("KWS") and the provision of compensation for death or injury by an
animal (provided no offence had been committed under the Act and the animal
was not killed during 'normal wildlife utilisation activities'). The 1976 Act also
contained specific additional restrictions in relation to the National Parks which
aimed to ensure animals were not disturbed.
Hunting, killing or trapping animals or dealing in, importing or exporting animal
products without a licence was outlawed under the 1976 Act, and the domestic
courts had the power to remove a licence from anyone who had contravened the
1976 Act.
10
Legislation accessed in January 2014 at: http://faolex.fao.org/docs/pdf/ken7750.pdf
7
Any conviction under the 1976 Act would be reported to the Director of the KWS
but there is no clear evidence that this had a deterrent effect.
The 1976 Act implemented some of the CITES Convention, but not all of its
requirements.11 In particular, it failed to designate at least one CITES
Management Authority and one Scientific Authority. Kenya came under criticism
at the CITES Conference of the Parties in March 2013 for its failure to implement
legislation which complied with the convention, as well as in other open
forums.12 Given the increase in poaching in Kenya in recent years, the Attorney
General pushed for the New Act, which had been under discussion for some time,
to be enacted.13
2.1.2
Wildlife Conservation and Management Act, 201314 ("New Act")
The New Act gained assent on 24 December 2013 and came into force on 10
January 2014. The New Act repealed the existing legislation and is a much more
comprehensive piece of legislation aimed to encourage local ownership of
wildlife conservation and management, to encourage greater public participation,
to make wildlife conservation benefit landowners and to sustain utilisation for
future generations.15 One of the criticisms of the previous legislation was that the
penalties did not act as a sufficient deterrent to poachers and other wildlife
traffickers and the New Act is intended to address this. Under the New Act, the
following offences are created which are particularly relevant to the trade in
wildlife and several of which potentially conform to UNODC's definition of a
"serious crime":
11

Offences in respect of endangered or threatened species or in relation
to trophies in respect of endangered or threatened species for which
the penalty is a fine of not less than KES20m (US$232,964.4816)17
and/or life imprisonment;18

Possession or dealing in a wildlife trophy without a permit for which
the penalty is a fine of not less than KES1m (US$11,648.22) and/or
imprisonment for not less than 5 years;19
CITES Website, http://www.cites.org/eng/com/sc/62/E62-23.pdf
12
Kibiwott Koross, "Kenya: CITES Convention ?Fails to Protect the African Elephant?" 20 March 2013, accessed between 13 and 27
January 2014, http://allafrica.com/stories/201303201434.html
13
Agfrey Mutambo "Pass wildlife bill before December, parliament urged", Daily Nation, Thursday 7 November 2013, accessed 31 January
2014 http://www.nation.co.ke/news/Pass-wildlife-bill-before-December/-/1056/2063498/-/10iup05/-/index.html
14
Legislation accessed in January 2014 available at:
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/WildlifeConservationandManagement%20Act2013.pdf
15
Section 4 New Act
16
Applying
a
conversion
rate
of
0.0116482
USD
to
1
KES
on
28
January
2014
using
http://www.xe.com/currencyconverter/convert/?Amount=20000000&From=KES&To=USD. This is the same for all conversions specified
throughout this report.
17
It should be noted that Kenya is considered by WorldBank to be a "low income" nation, accessed 31 January 2014,
http://data.worldbank.org/country/kenya.
18
19
Section 92 New Act
Section 95 New Act
8

Engaging in sport hunting or other recreational hunting. In relation to
critically endangered mammals, the penalty for this is not less than
KES20m (US$232,964.48) or life imprisonment. In relation to other
endangered and vulnerable animals the penalty is KES5m
(US$58,241.12) and/or 5 years' imprisonment;20

Hunting for bush meat trade or dealing in wildlife carries a penalty of
KES200,000 (US$2,329.64) and/or not less than 1 year's
imprisonment;21 and

Import and export of wildlife species. The penalties vary depending
on the category of wildlife. For category A wildlife (for which the
definition is not clear but the inference is that this refers to critically
endangered mammals at least) the penalty is a fine of not less than
KES10m (US$116,482.24) or not less than 5 years' imprisonment.
For other wildlife, the penalty is a fine of not less than KES1m
(US$11,648.22) and/or imprisonment of not less than 2 years.22
In addition to this, there are a number of ancillary offences created which are
intended to help deter wildlife trafficking including:

Offences in connection with permits and licences. Carries a penalty
of not less than KES200,000 (US$2,329.64) and/or not less than 1
year imprisonment;23

No aircraft to land in wildlife protected areas other than at a
designated strip (other than aircraft used by KWS);24

Failure to comply with a lawful order from an authorised officer;25
and

Wildlife trophies, vehicles, equipment or other means of committing
offences may be forfeited.26
Under the New Act compensation may be claimed in the event that death and
personal injury is caused by wildlife.27 Also, for the first time, there is the ability
to claim compensation for damage to crops and destruction of property.28 Whilst
not directly impacting on wildlife trafficking, these provisions may help in
brokering support locally for protection of wildlife. In addition to this, when new
20
Section 96 New Act - it should be noted that other places in the legislation refer to sentences being "not less than" a certain time period
but in this instance, just the time period is stated.
21
22
23
24
25
26
27
28
Section 98 New Act
Section 99 New Act
Section 91 New Act
Section 94 New Act
Section 101 New Act
Section 105 New Act
Part V New Act
Sections 24 and 25 New Act
9
national parks, reserves or similar areas are being created, there is an emphasis on
carrying out public consultations, which is helpful for ensuring that the local
population is included in decisions which affect their surroundings.29 These
communities are therefore more likely to be engaged and supportive.
The New Act has received positive feedback from international organisations30
and from local wildlife groups,31 although whilst the feedback appears to be that
the New Act is a step forward, some have suggested that the level of public
consultation (and actions taken in consequence of such consultations) during the
drafting of the bill could have been greater.32 Stories in local newspapers have
highlighted some of the measures aimed to aid public buy-in including the
availability of compensation for injuries caused by endangered wildlife.33 In the
fight to stop poaching and trafficking, local support is going to be key and it is to
be hoped that the New Act has gone far enough to broker that support, but this is
yet to be determined.
The most recent published information from CITES stated that Kenya's
legislation was not sufficient to be considered as national implementation of
CITES.34 However, this information dates back to July 2012 when the 1976 Act
was still in force, and before the New Act was enacted. As noted above, the New
Act does appear to cover the matters which CITES requires to be included in
legislation,35 although this is yet to be confirmed by CITES and it may be that the
availability of fines as punishment for wildlife crimes and the frequency of their
use over the custodial penalty could impact on this.
2.2
Species-specific legislation
Kenya does not have any species-specific legislation independent of CITES and the principal
legislation discussed above.36
The New Act does categorise species specifically37 and some of the offences contained in the
New Act have varying degrees of severity depending on the status of the species in respect of
which the offences are committed.38
29
Part VI New Act
30
WWF "WWF applauds Kenyan parliament for passing motion to increase penalties on wildlife crimes", Accessed 29 January 2014,
http://wwf.panda.org/?208820/WWF-Applauds-Kenyan-Parliament-for-Passing-Motion-to-Increase-Penalties-on-Wildlife-Crimes
31
Save the Elephants, "Kenya: Wildlife
http://allafrica.com/stories/201109051467.html
Bill
Proposes
Stiff
Penalties
for
Poaching",
Accessed
29
January 2014,
32
East African Conservation, Note on The Wildlife Conservation and Management Bill 2013, accessed on 29 January 2014,
http://www.eawildlife.org/the-news/eawlsnews/355-the-wildlife-conservation-and-management-bill-2013-as-submitted-to-the-nationalassembly-july-2013
33
Daily Nation, "Families of animal attack victims set to be paid Sh5m", accessed 31 January
http://www.nation.co.ke/news/Wildlife-Attack-Victims-Bill-Parliament-Compensation/-/1056/2097606/-/b65mb0z/-/index.html
2014,
34
CITES website, accessed 26 January 2014, http://www.cites.org/eng/com/sc/62/E62-23.pdf
35
CITES website, accessed 26 January 2014, http://www.cites.org/eng/res/08/E-Res-08-04C16.pdf
36
Note, however, that species found within Kenya are recognised by CITES. For example, in May 1989, the African elephant was added to
Appendix 1 of CITES, which effectively banned the international trade in ivory and other elephant products. “Elephant Programme,”
accessed January 23, 2014, http://www.kws.org/research/projects/
37
38
Sixth Schedule, New Act
Section 96 New Act, Section 99 New Act
10
2.3
Additional information
Although Kenya does not have species-specific legislation, it has taken several speciesspecific initiatives, including the creation of species-specific task forces, implementation of
non-legislative efforts to detect and deter illegal species-specific activity, and proposition of
species-specific amendments to CITES.
39
2.3.1
Species-specific task forces: The KWS is a state corporation established by an
Act of Parliament39 with the mandate to conserve and manage wildlife in Kenya,
and to enforce related laws and regulations.”40 To that end, KWS has spearheaded
several species-specific task forces. For example, in 1989, KWS established the
Elephant Programme “to protect the elephants from the danger of extinction that
was posed by the poachers.”41 KWS also has a Rhino Programme aimed at rhino
conservation. Pursuant to this mission, KWS has adopted a conservation and
management plan, the goal of which is to “enhance rapid population growth of
the black rhino population in Kenya through increased attention to biological
management, in addition to law enforcement.”42 Similarly, KWS launched the
Kenya Integrated Sea Turtle Conservation project in 2008 with the aim of
“integrating different approaches of sea turtle conservation and enhancing efforts
by KWS and its partners.”43
2.3.2
Non-legislative efforts to detect and counter illegal species-specific wildlife
activity: Kenya has utilised technology and advanced training to help detect and
counter illegal wildlife activity related to certain species. For example, as of
October 2013, it was reported that “Kenya is implanting microchips in every
rhino nationwide . . . [which] will allow wildlife officials to track the animals and
trace poached horns.”44 Kenya also has a Canine Detection Unit that is trained to
detect rhino horn or elephant ivory.45 In addition, in December 2013, military
personnel were engaged “to help train park rangers on how to counter elephant
poachers.”46
2.3.3
Species-specific proposals at CITES Conference of the Parties (“CoP”): “At
CoP12 in 2002, Mali, Kenya and Congo joined forces in order to speak with one
voice to highlight the plight of their rapidly disappearing elephants.”47 Five years
later, at CoP14, Kenya and Mali championed and submitted a proposal for a 20year moratorium on ivory trade.48 “A compromise was reached with pro-trade
Act of Parliament Cap 376
40
“KWS,” accessed January 23, 2014, http://www.kws.org/about/index.html
41
“Elephant Programme,” accessed January 23, 2014, http://www.kws.org/research/projects/
42
“Rhino Programme,” accessed January 23, 2014, http://www.kws.org/research/projects/rhino_programme.html
43
Said, Mohamed Omar Said, “Kenya Wildlife Service Launches Kenya Integrated Sea Turtle Conservation (KIST-CoN),” accessed
January 23, 2014, at http://www.ioseaturtles.org/pom_detail.php?id=79
44
Faith Karimi, “Kenya implanting Microchips in every rhino to fight poaching,” CNN Oct. 21, 2013, accessed January 23, 2014,
http://www.cnn.com/2013/10/21/world/africa/kenya-rhino-microchips/
45
“Canine Detection Unit,” accessed January 23, 2014, http://www.awf.org/projects/canine-detection-unit
46
Ryan Grenoble, “British Paratroopers Will Help Train Kenyan Rangers To Fight Off Illegal Elephant Poachers,” The Huffington Post,
November 12, 2013, accessed January 23, 2014, http://www.huffingtonpost.com/2013/11/12/british-army-kenya-elephantpoaching_n_4256426.html
47
Kenya Elephant Forum, Fact Sheet 01-2013, “The African Elephant Coalition,” accessed January 23, 2014,
http://www.elephantvoices.org/index.php?option=com_docman&task=cat_view&gid=150&Itemid=189
48
Ibid.
11
Parties for a 9-year moratorium beginning in 2008.”49 At CoP16 in 2013, Kenya
submitted another proposal regarding trade in elephant ivory.50 Specifically,
Kenya sought to amend the wording of CITES Annotation 5 to the Appendices on
the African elephant51 such that greater limits would be placed on future
proposals to allow trade in elephant ivory. Ultimately, the Secretariat
recommended that the proposal be rejected.52
Although Kenya does not have any species-specific legislation independent of CITES and its
principal legislation, its focus on specific species through KWS task forces, non-legislative
efforts to deter and counter illegal wildlife activity, and CITES proposals, displays a level of
species-specific concern worth noting.
3.
PENALTIES
The crimes which carry the most severe penalties under the New Act are set out at section
2.1.2 above. The New Act is intended to act as a greater deterrent to poachers and illegal
traffickers and the severity of the penalties imposed reflect this. The most severe penalty for a
wildlife crime under the New Act is life imprisonment and there are four offences which
could be categorised as "serious crimes" under UNOCD's definition.53 The willingness of the
Kenyan courts to impose such serious penalties has not yet been tested.
By contrast, under the 1976 Act, penalties were comparatively minor54 and there was
considerable criticism of the 1976 Act for this reason. The maximum penalty for any
contravention of the 1976 Act was KES40,000 (US$465.93) and/or 10 years' imprisonment,
however, reports suggest that penalties were more normally a comparatively small fine.55
There were calls from various quarters for penalties to be increased.56 The average annual
wage for a Kenyan is reportedly KES148,080 (US$ 1,715.80)57 which would mean that a
maximum fine under the 1976 Act would equate to almost a third of a Kenyan's annual wage.
However, when compared against the black market value of raw ivory which was reported to
be worth KES112,190 (US$1300) a pound as at March 2013, and the fact that many suspected
offenders of wildlife crime are foreign, the penalties under the 1976 Act were largely
insignificant.58 The fines under the New Act are of a much more significant level.
49
Ibid.
50
Kenya Elephant Forum, Fact Sheet 03-2013, “CITES and the Ivory Trade,” accessed January 23, 2014,
51
Convention on International Trade in Endangered Species of Wild Fauna and Flora, “Consideration of Proposals for Amendment of
Appendices I and II,” accessed February 5, 2014, http://www.cites.org/sites/default/files/eng/cop/16/prop/E-CoP16-Prop-12.pdf
52
Kenya Elephant Forum, Fact Sheet 04-2013, “Proposals on the African Elephant at CITES CoP16,” accessed January 23, 2014,
53
Sections 88(2)(a), 92, 95 and 96(1)(a) of the New Act.
54
Save the Elephants, "Kenya Penalties for Wildlife Crimes too Lenient", accessed in January 2014,
http://www.savetheelephants.org/news-reader/items/kenya-penalties-for-wildlife-crimes-too-lenient.html
55
Ibid.
56
WWF, Statement on Elephant Killing in Kenya, 8 January 2013, accessed January 2014, https://worldwildlife.org/pressreleases/statement-on-elephant-killing-in-kenya
57
Salary Explorer Website, accessed between 27 Janaury 2014 and 3 February 2014, http://www.salaryexplorer.com/salarysurvey.php?&loctype=1&loc=111
58
Dan Levin, New York Times, "From Elephants Mouths, an Illicit Trail to China", accessed January 2014,
http://www.nytimes.com/2013/03/02/world/asia/an-illicit-trail-of-african-ivory-to-china.html?pagewanted=all&_r=0
12
In comparison to other crimes prosecuted under the Penal Code59 such as those set out below,
the 1976 Act's penalties seemed comparatively meagre although the New Act has
significantly increased the penalties which may be imposed for the most severe wildlife
crimes. Examples of other offences under the Penal Code are as follows:
3.1

Theft of livestock provides for a penalty of 14 years' imprisonment;60

Other categories of theft provide for 3 years' imprisonment;61

Arson provides for up to life imprisonment;62

Corruption and fraud provide for a fine not exceeding KES 1 million
(US$11,648.22) and/or imprisonment not exceeding 10 years;63 and

Money laundering provides for a fine not exceeding KES 5 million
(US$58,241.12) and/or imprisonment not exceeding 14 years.64
Penalties for specific offences
Under the New Act, members of the KWS, forest officers, fisheries officers, police officers,
customs officers and administrative officers ("Authorised Officers") are granted fairly wide
powers which are aimed to help enforce the provisions of the New Act.65 These include the
ability to make arrests but also the ability to demand to see a permit or licence, to detain a
suspect, powers of seizure, search and confiscation, and the ability to conduct investigations.
Authorised Officers are specifically granted powers to enter land, premises, vehicles, aircrafts
and trailers. Senior Authorised Officers are also permitted to construct temporary barriers to
undertake searches. These wide powers and the offences relating to using aircraft in wildlife
protected areas, together aim to help give the KWS and associated services the powers they
need to enforce the provisions of the New Act with greater effectiveness than they had under
the previous legislation. In addition to the powers granted to Authorised Officers, any person
who suspects an offence may petition the Environment and Land Court directly for redress
(see section 5.1 below for information about this court).
3.2
Enforcement
Enforcement is considered at sections 5.2 and 5.3 below.
59
60
61
62
63
64
65
The Penal Code, accessed January 2014 at http://www.kenyalaw.org/Downloads/GreyBook/8.%20The%20Penal%20Code.pdf
Section 278 Penal Code
Section 48 of the Anti-Corruption and Economic Crimes Act
Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009
Part XIII New Act
13
4.
ANCILLARY LEGISLATION
4.1
Legislation summary
In addition to offences under the New Act, alleged wildlife criminals in Kenya may be
prosecuted for various associated offences under the following legislation:
4.1.1
Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009
The relevant criminal offences under this Act include: money laundering;
acquisition, possession or use of proceeds of a crime; and financial promotion of
an offence.66
4.1.2
The Anti-Corruption & Economic Crimes Act 2003
The relevant criminal offences under this Act are corruption. This includes,
among other things, fraud, bribery, and an offence involving dishonesty – and
economic crime – including an offence involving the acquisition or damage of
public property.67
4.1.3
The Prevention of Organised Crimes Act 2010
Under this Act, a person who acts in concert with a group of persons with the aim
of committing one or more serious crimes, is guilty of a criminal offence. A
serious crime is defined as “conduct constituting an offence against a provision of
any law in Kenya punishable by a term of imprisonment of at least six months . .
.”68 Notably, “Kenya’s prominent role in ivory trafficking is a major shift in
African trade routes and the scale of these consignments suggest the handiwork
of organised criminal syndicates.”69
4.1.4
The Kenyan Income Tax Act, Chapter 470 (2010)
“One direct impact of illicit wildlife trafficking on the social and economic
development of a country is the immediate and irreversible depletion of valuable
assets . . . 'The government does not receive any tax or revenue to support the
economic activities and the country loses a lot of resources.'” 70 To the extent that
wildlife crime reduces taxable revenues or otherwise induces infringement of tax
laws (e.g., tax fraud/tax evasion), this Act would also be applicable.
66
Proceeds of Crime and Anti-Money Laundering Act (Cap 59B) (2009), Part II, Sections 3, 4, 7, accessed January 23, 2014,
http://www.bu.edu/bucflp/laws/proceeds-of-crime-and-anti-money-laundering-act-no-9/
67
The Anti-Corruption & Economic Crimes Act (Cap 65) (2003), Part V, accessed January 23, 2014,
http://www.kenyalaw.org/kenyalaw/klr_app/frames.php
68
The Prevention of Organised Crimes Act (Cap 59) (2010), Part I, Section 2, accessed January 23, 2014, www.parliament.go.ke
69
Paula Kahumbu, “Saving Elephants – 10 Ways in 100 Days,” the Star, May 7, 2013, accessed January 23, 2014, http://www.thestar.co.ke/news/article-119457/saving-elephants-10-ways-100-days
70
“Fighting Illicit Wildlife Trafficking, A Consultation with Governments,” Dalberg Global Development Advisors, WWF Report, at p. 17,
accessed January 23, 2014, www.dalberg.com
14
4.1.5
The Prevention of Terrorism Act71
To the extent that wildlife trafficking funds terrorist activities, this Act may be
applicable. For example, according to an undercover investigation by the
Elephant Action League, there is strong evidence that Al-Shabaab, the terrorist
group responsible for the Kenyan Westgate shopping mall massacre, “has been
actively buying and selling ivory to fund its militant operations.”72
4.1.6
The Firearms Act. (Cap 114)
The relevant criminal offences under this Act include the purchasing, acquisition
or possession of any firearm or ammunition without a licence or permit, failure to
comply with any condition subject to which a firearm is held, and unlawfully
permitting another person to take possession of a licensed firearm or ammunition
to advance the course of organised criminal activity.73
4.1.7
The Meat Control Act (Cap 356)
This Act was enacted to enable control to be exercised over meat and meat
products intended for human consumption, and over slaughterhouses and places
where such meat is processed; and to provide for import and export control over
such meat and meat products. A large number of regulations have been
implemented, and the possible offences relevant to wildlife include: a prohibition
on the transportation of any meat unless that person holds a permit to transport
meat; and the sale of uninspected meat.74
4.2
Penalties and enforcement
4.2.1
Money Laundering
The Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009 sets forth
the following penalties in relation to money laundering, the acquisition,
possession or use of proceeds of crime, and financial promotion of an offence:75

A natural person is liable to imprisonment for a term not exceeding
fourteen years, or a fine either not exceeding KES 5 million
(US$58,241.12) or the amount of the value of the property involved
71
Prevention of Terrorism Act (No. 30) (2012), accessed February 5, 2014, http://frc.go.ke/legislation/2013/03/prevention-of-terrorism-act2012
72
“Is Elephant and Rhino Poaching Funding Terrorism?” accessed January 23, 2014,
http://www.savetherhino.org/rhino_info/thorny_issues/is_elephant_and_rhino_poaching_funding_terrorism; see also Catrina Stewart,
“Illegal Ivory Trade Funds al-Shabaab’s Terrorist Attacks,” October 6, 2013, accessed January 23, 2014,
http://www.independent.co.uk/news/world/africa/illegal-ivory-trade-funds-alshabaabs-terrorist-attacks-8861315.html
73
The Firearms Act. (Cap 114) of the Laws of Kenya, section 4 & 4A, accessed 27 January 2014,
74
The Meat Control Act (Cap 356) of the Laws of Kenya and subordinate legislation, accessed on 27 January 2014,
75
“A person who, knowingly transports, transmits, transfers or receives or attempts to transport, transmit, transfer or receive a monetary
instrument or anything of value to another person, with intent to commit an offense,” is guilty of “financial promotion of an offense” under
the Act.
Proceeds of Crime and Anti-Money Laundering Act, Section 7, accessed February 5, 2014,
15
in the offence, whichever is the higher, or to both the fine and
imprisonment;76 and

4.2.2
A body corporate is liable to a fine either not exceeding KES 25
million (US$291,205.60), or the amount of the value of the property
involved in the offence, whichever is the higher.77
Corruption and Fraud
Under Section 48 of the Anti-Corruption and Economic Crimes Act, 78 “a person
convicted of an offence [relating to corruption or fraud] shall be liable to a fine
not exceeding KES 1 million (US$11,648.22), or to imprisonment for a term not
exceeding ten years, or to both” as well as “an additional mandatory fine if, as a
result of the conduct that constituted the offence, the person received a
quantifiable benefit...”.79
4.2.3
Organised Crime
Under the Prevention of Organised Crimes Act 2010:

"A person who engages in any organised criminal activity…commits
an offence and shall, upon conviction, be liable to a fine not
exceeding KES 5 million (US$58,241.12) or to imprisonment for a
term not exceeding 15 years, or both."80

"A person who attempts, aids, abets, counsels, procures, or conspires
with another to commit an offence under this Act” will be liable to a
fine not exceeding KES 1 million (US$11,648.22) or to
imprisonment for a term not exceeding 14 years, or both.”81

If in the commission of the organised criminal activity, a person dies,
the offender will be liable to imprisonment for life.82

A person who administers, consents to the administration of, or takes
an oath related to involvement in the organised criminal group, will
be liable to imprisonment for life.83

Additionally, any cash acquired in connection with the organised
crime may be seized.84
76
Proceeds of Crime and Anti-Money Laundering Act (Cap 59B) (2009), Section 16(1)(a), accessed January 23, 2014,
77
Ibid. Section 16(a)(2).
78
The Anti-Corruption & Economic Crimes Act (Cap 65) (2003), accessed January 23, 2014,
htttp://www.kenyalaw.org/kenyalaw/klr_app/frames.php
79
The Anti-Corruption & Economic Crimes Act (Cap 65) (2003), Section 48 accessed January 23, 2014,
80
81
82
83
The Prevention of Organised Crimes Act (Cap 59) (2010), Section 4(1), accessed January 23, 2014, www.parliament.go.ke.
The Prevention of Organised Crimes Act (Cap 59) (2010), Section 6, accessed January 23, 2014, www.parliament.go.ke.
Ibid. Section 4(2).
Ibid. Section 5.
16
4.2.4
Tax Evasion
The Kenyan Income Tax Act (Cap 470) of 2010 provides for various offences
and regulatory provisions which would apply to those involved in wildlife crimes.
These include:
4.2.5

A person who "knowingly omits" income from a return "or makes
any incorrect statement which affects his liability to tax," is liable to
additional tax of an amount twice the tax concealed, plus a maximum
KES 200,000 (US$2,329.64) fine and/or up to two years'
imprisonment.85

Offences under the Act for which no other penalty is specified are
subject to a maximum fine of KES 100,000 (US$1,164.82) and/or
imprisonment not exceeding six months.86
Terrorism
Under the Prevention of Terrorism Act 2012:
4.2.6

“A person who, directly or indirectly, collects, attempts to collect,
provides, attempts to provide or invites a person to provide or make
available any property, funds or a service intending, knowing or
having reasonable grounds to believe that such property, funds or
service shall be used – (a) for the commission of, or facilitating the
commission of a terrorist act; or (b) to benefit any person or terrorist
group involved in the commission of a terrorist act, commits an
offence and is liable, on conviction, to imprisonment not exceeding
twenty years.”87

“A person who knowingly supports . . . the commission of a terrorist
act . . . is liable. . .to imprisonment for a tern not exceeding twenty
years.”88
Firearms
The Firearms Act (Cap 114) of 1954 provides for various penalties relating to the
offences specified at 4.1.6, ranging from a custodial sentence of between seven
and 15 years for offences involving firearms specifically listed in the Act and a
term not exceeding 10 years for offences involving other firearms not specified in
the Act. Furthermore, if a person is found in possession of any specified
firearm(s) as listed in Section 4A of the Act (which includes AK 47s, G3s and
MP5s) without a licence or permit or other lawful justification or otherwise
unlawfully permits another person to take possession of or use such a firearm or
84
Ibid. Sections 17-18.
85
Kenyan Income Tax Act (CAPT 470) of 2010, Section 72(A), 108(1), accessed January 23, 2014,
http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweken.htm. Section 72(A); 108(1)
86
Ibid. Section 107.
87
Prevention of Terrorism Act (2012), Part III, Section 5, accessed January 23, 2014, http://frc.go.ke/legislation/2013/03/prevention-ofterrorism-act-2012
88
Ibid. Section 9(1).
17
ammunition to advance the course of organised criminal activity, they shall be
liable to imprisonment for life.
4.2.7
Meat control
Under the Meat Control Act (Cap 356) and its subordinate legislation, depending
on the offence, possible penalties are a fine not exceeding KES 10,000
(US$116.48) or imprisonment for a term not exceeding six or twelve months
(depending on the offence committed), or both.89
4.3
Relationship with principal legislation
The Kenyan Government’s “decision to prosecute wildlife criminals under the Proceeds of
Crime and Anti-Money Laundering Act (2010), the Prevention of Organised Crimes Act
(2011), the Anti-Corruption and Economic Crimes Act (2003), and the Prevention of
Terrorism Act (2012) is laudable.”90 Unfortunately, however, it has been noted that
“conservationists express regret that while the Government undertook to prosecute poachers
and dealers of wildlife trophies under the Proceeds of Crime and Anti-Money Laundering
Act, the Prevention of Organised Crimes Act, the Anti-Corruption and Economic Crimes Act
and the Prevention of Terrorism Act, the courts are yet to take action.”91
Due to the lack of available information, it is difficult to assess the likelihood of success in
terms of prosecuting wildlife crimes under the above ancillary legislation. Indeed, we were
unable to locate any specific cases where such ancillary legislation was used to prosecute
illegal wildlife activity.92 In a recent study by WildlifeDirect, they have reported that between
January 2008 and June 2013, 303 offenders were charged under the 1976 Act and only 24
offenders were charged with offences under ancillary legislation for wildlife-related offences
(including the Firearms Act, the Meat Control Act, and the Penal Code).93 According to
Paula Kahumbu, the director of WildlifeDirect, a conservation group, ‘“[c]hallenges in
combating the illegal trade include corruption in the courts and the frequent collection of poor
evidence by wildlife officials.”’94 The impact this has on the decision to prosecute wildlife
crimes under the principal legislation versus ancillary legislation is uncertain. With the
passing of the New Act, however, it is clear that Kenya has increased the penalties for wildlife
offences under the principal wildlife legislation, with the result that the New Act may serve as
a sufficient deterrent as standalone legislation. As such, prosecutors may feel even less
inclined to explore bringing charges under ancillary legislation now that the New Act has
entered into force. This is not necessarily a good thing, as ideally all possible charges should
be explored when prosecuting such crimes.
89
Examples of penalties as set out in subordinate legislation include: The Meat Control (transport of Meat) Regulations 1976, Regulation 9;
The Meat Control (local slaughterhouses)(licensing) Regulations 2011, Regulation 5; The Meat Control (Importation of Meat and Meat
Products) Regulations 2001, Regulation 16, accessed 27 January 2014, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php
90
Forestry & Wildlife News, A Publication of Forestry & Wildlife, Volume 7, January 2013, accessed January 23, 2014. See also Ronald
Njoroge and Peter Mutai, “Kenya urged to declare wildlife poaching ‘national crisis,’” Coastweek February 1-7, 2013, accessed January 23,
2014, http://www.savetheelephants.org/news-reader/items/kenya-urged-to-declare-wildlife-poaching-national-crisis.html
91
“Judiciary Accused of Being Too Lenient to Poachers, Traffickers,” accessed January 23, 2014,
http://www.standardmedia.co.ke/m/story.php?id=2000080968&pageNo=2
92
See Section 5.2.1 (discussing the lack of a public central database or electronic record that gives reliable access to case data).
93
Paula Kahuma, Levi Byamukama, Jackson Mbuthia & Ofir Drori for WildlifeDirect (2014), "Scoping study on the prosecution of wildlife
related crimes in Kenyan courts January 2008 to June 2013". Copy report received directly from Paula Kahumbu of WildlifeDirect in
January 2014.
94
David Malingha Doya, “Kenya to Enact Harsher Punishments for Elephant, Rhino Poachers,” Bloomberg September 17, 2013, accessed
January 23, 2014, http://www.bloomberg.com/news/2013-09-17/kenya-to-enact-harsher-punishments-for-elephant-rhino-poachers.html
18
5.
JUDICIAL PROCESS AND CAPACITY
5.1
Judicial Process
5.1.1
General Process for criminal prosecutions:
The Director of Public Prosecutions (DPP) is the office under Kenya's 2010
Constitution responsible for instituting and undertaking criminal proceedings
against any person before any court (other than a court-martial) in Kenya with
respect to any offence alleged to have been committed.95
5.1.2
Court structure:96
Kenya has the following court structure:
The Supreme Court which has:
(a)
(b)
exclusive jurisdiction –
(i)
in respect of presidential election petitions; and
(ii)
in disputes arising from the process of the impeachment of the
President; and
appellate jurisdiction to hear appeals from the Court of Appeal or from
any other court or tribunal as prescribed by an Act of Parliament.
The Court of Appeal – has jurisdiction in contempt proceedings; it is essentially
an appellate court and the court that sets out policy, as its decisions are binding
on lower courts.
The High Court – has various divisions i.e. in Nairobi there is the Criminal
Division, Civil Division, Family Division and Commercial Division and the
Constitution Court. The Chief Justice can constitute a constitutional court out of
any three divisions to sit as a constitutional court. The Constitutional bench is
important as it has to deal with the violations and contravention of the accused
persons who can go to the constitutional court to seek redress.
Subordinate courts at the following different levels:

Chief Magistrate;

Senior Principal Magistrate;

Principal Magistrate;

Senior Resident Magistrate;
95
Kenya Law Reform Commission, accessed January 17 2014, http://www.klrc.go.ke/index.php/constitution-of-kenya/132-chapter-ninethe-executive/part-4-other-offices/325-157-director-of-public-prosecutions
96
Kenya
Law
Resource
Center,
Criminal
Procedure,
http://kenyalawresourcecenter.blogspot.co.uk/search/label/criminal%20procedure
accessed
January,
17
2014,
19

Resident Magistrate;

District Magistrate.
All magistrates are professional lawyers.97
The District Magistrates' Court is the starting point of almost all criminal cases
including wildlife offences under the 1976 Act and now the New Act.98
Magistrates' courts in Kenya deal with an array of legal issues including: criminal
law, traffic law, land law, and civil law.99
There are no specialist magistrates' courts trained specifically to deal with
wildlife crime in Kenya.
The post-independence Kenya criminal justice system does not provide for a trial
by jury. Trial by jury in Kenya was abolished with the end of colonial rule. Only
a magistrate, the judge of a High Court, or a panel of judges on the Court of
Appeal can hand down decisions in criminal cases.100
5.1.3
97
General prosecution process for criminal actions:
5.1.3.1
The prosecutor, as a representative of the state, studies the case and
decides how to present the case on the day of the trial. There is a
preliminary hearing during which both the prosecution and defence
present their cases. Witnesses may be introduced by both parties.101
5.1.3.2
The prosecutor at the District Magistrates' Court is usually a senior
police officer who has been trained for the position, but is not a
certified lawyer. The use of a police officer as a prosecutor is a
remnant of the British colonial administration.102
5.1.3.3
At the second hearing, which is the main trial of the case, the
prosecution presents all of the evidence to prove the defendant
committed the offence. The defence attorney may ask the magistrate
to dismiss the case entirely or alternatively, plead for mercy if the
prosecution's evidence indicates that the client committed the crime
beyond reasonable doubt. If the defence claims insanity as a factor in
the crime, psychiatrists can be consulted.103
Ibid.
98
Dr Robert Winslow assisted by Myron Epps, Crime and Society - a comparative criminology tour of the world; Africa; Kenya (Undated),
accessed on January 17 2014, http://www-rohan.sdsu.edu/faculty/rwinslow/africa/kenya.html
99
Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012), available here: http://www.judiciary.go.ke/portal/state-of-thejudiciary-report.html
100
101
102
103
Dr Robert Winslow assisted by Myron Epps, Crime and Society - a comparative criminology tour of the world; Africa; Kenya
20
5.1.4
Specific judicial process for wildlife offences:
The KWS and the Kenyan police arrest and detain those suspected of having
perpetrated offences under the Act in accordance with the powers granted to them
under the 1976 Act.
Under the 1976 Act, KWS wardens had the same powers as public prosecutors in
Kenya (Section 56 of the 1976 Act).
Under the New Act, the Director of Public Prosecutions ("DPP") has the power
to designate special prosecutors to prosecute wildlife offences and/or delegate his
or her prosecutorial powers to 'authorised officers' of the KWS to prosecute
offences under the New Act (Section 107 of the New Act). It is not yet clear
whether such powers have been exercised by the DPP.
It appears from a letter to the KWS from the DPP dated 12 April 2013 that the
DPP had, prior to the introduction of the New Act, established a joint task force
with the KWS to address the escalation of crimes involving wildlife in recent
months.104 Within this letter, the DPP acknowledges receipt of data on all cases of
wildlife crime that the KWS had prosecuted (and was in the process of
prosecuting) since 2009 and confirms that the DPP has 'taken over' the
prosecution of wildlife offences. The DPP also requests details of the names and
CVs of KWS officers who may be appointed as prosecutors for wildlife cases,
and confirms that following appointment, 'this office will organise a crash
training programme for them so as to equip them with the requisite prosecutorial
skills to handle such type of cases'. It therefore appears that the DPP has now
assumed control of the process for the prosecution of wildlife offences in Kenya.
Based on news reports from the KWS, in practice it appears that following an
arrest:

The KWS wardens will collate and assess the available evidence;

The KWS wardens will determine what wildlife offences (if any) the
suspect will be charged with;

The KWS wardens will then act as a public prosecutor against the
accused in the local Magistrates' Court (local to where the alleged
offence was committed) following the criminal judicial process as set
out by the Penal Code (Chapter 63).105
WildlifeDirect, which is a Kenya- and US-registered charitable organisation
established to provide support to conservationists in Africa, has reported that
prosecutions of wildlife offences in Kenya are handled mostly by the police but
that recently the KWS has begun handling prosecutions and the DPP is now
104
Office of the Director of Public Prosecutions, letter to Dr Kiprono of the KWS dated 12 April 2013, available here:
http://www.odpp.go.ke/index.php/downloads/viewdownload/10-press-release/26-prosecutions-of-wildlife-cases
105
Penal Code (Chapter 63), accessed January 17, 2014, available here: http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweken.htm
21
involved in prosecuting cases involving elephants and rhinos in response to
escalating threats to these two species.106
5.2
Prosecutions
There is no public central database or electronic record which gives reliable access to data
regarding the prosecution of wildlife offences in Kenya. Whilst a case search function is
included within the website of the National Council for Law Reporting in Kenya, (which is a
semi-autonomous state corporation)107, the search function is limited and has only produced
limited results of appellate decisions following keyword searches (see section 5.3 below for
further information). As such, the publicly available information is limited to a review of
annual legal reports prepared by the Kenyan judiciary, research undertaken by charities,
including a recent comprehensive study undertaken by WildlifeDirect,108 and news reports.
According to WildlifeDirect, it is reported that around 2,000 people are arrested in Kenya
each year for offences linked to poaching and trafficking, based on an analysis of records
from around 15 courts in the country.109
The KWS website publishes news reports detailing arrests and prosecutions of suspects
accused of wildlife offences under the 1976 Act. From a review of the 2013 news archive,
there are 18 news reports concerning the arrest or charge of suspects but only four reports of
fines or custodial prison sentences being imposed. The maximum financial penalty awarded
was KES 30,000 ((US$349.44) and two custodial sentences were imposed for periods of 31
months and five years.110
WildlifeDirect also reports that in 2013:

three people were sent to jail for crimes concerning elephants and rhino in the
Makadara Magistrates court;

in seven cases where offenders pleaded guilty the Magistrates discharged the
offenders and released them; and

the probability of being given a custodial sentence if caught with ivory or rhino
horn at Jomo Kenyatta International Airport is less than 1 in 12.111
KWS has reported that its limited forensic expertise has created a barrier to the successful
prosecution of suspected wildlife crimes, particularly in cases requiring the identification of
106
107
Ibid. note 80
See the 'About Us' section
http://kenyalaw.org/kl/index.php?id=115
of
the
Kenya
Law
website,
accessed
January
17
2014,
available
here:
108
Paula Kahuma, Levi Byamukama, Jackson Mbuthia & Ofir Drori for WildlifeDirect (2014), "Scoping study on the prosecution of
wildlife related crimes in Kenyan courts January 2008 to June 2013".
109
Sarah Morrison, Charity Appeal:'The way to stop poaching is to use people like me,' says man jailed for cutting off dead elephant's tusks
, The Independent, December, 22 2013, available here: http://www.independent.co.uk/environment/nature/charity-appeal-the-way-to-stoppoaching-is-to-use-people-like-me-says-man-jailed-for-cutting-off-dead-elephants-tusks-9020178.html
110
KWS, Tortoise dealer fined by a Nairobi Court, lions injure Maasai Moran in Kajiado, March, 21 2013; Chinese smuggler fined
Sh30,000 as KWS rangers net 435 pieces ivory, March, 26 2013; Chinese woman to serve a total of 31 months in jail for smuggling ivory,
August, 22 2013; Kenyan court sentences British snake smuggler and local accomplice to five years imprisonment, September, 25 2013,
accessed on January, 17 2014, available here: http://www.kws.org/info/news.html
111
Paula Kahumbu, Kenya: Magistrates Lenient on Wildlife Traffickers, The Star, November, 29 2013, accessed January, 17 2014,
available here: http://allafrica.com/stories/201311290746.html
22
bush meat and the ability to connect exhibits (wildlife trophies and bushmeat) to specific
poaching incidents.112
5.2.1
Issues identified by WildlifeDirect in a significant recent study:
A recent comprehensive survey by WildlifeDirect looked at court records in
eighteen courts adjudicating on wildlife related crime. Their survey reported the
following findings:

Only 4% of offenders convicted of wildlife crimes went to jail (8 out
of 224 persons convicted of wildlife crimes);

Though there were frequent news report of KWS officers being
arrested for involvement in wildlife crimes, their study did not
identify any verdict which highlighted this problem. This is despite
the fact that in June 2013, 32 officers were suspended from the KWS
pending an investigation into alleged collusion with poachers to kill
elephants and rhinos for trophies;113

Wildlife-related crime in Kenya is treated as a misdemeanour or petty
crime and is 'mismanaged' within the Kenyan court systems. Of 743
cases registered in the courts during the period of the study, 70% of
the court files were reported missing or misplaced in the courts;

No case files could be found for ivory or rhino horn trafficking in
Mombasa despite frequent news reports of ivory seizures in the Port
of Mombasa;

The maximum custodial sentence available for wildlife-related
crimes has never been imposed. Only 3.6% of penalties were
custodial whereas 73.7% of the penalties were fines. Of those
offenders who were given the option of a fine or imprisonment,
almost all of the offenders (99.4%) could afford to pay the fine;

Poor tracking of previous convictions and little exchange of
information between courts makes it challenging to identify repeat
offenders so their sentencing does not reflect the extent of repeated
criminal activities;

During the period of the study, offenders were given lenient
sentences and fines well below the maximum thresholds imposed by
the 1976 Act.114
112
KWS, KWS commissions construction of wildlife forensic and genetics laboratory, August, 14 2012, accessed January 17 2014,
available here: http://www.kws.org/info/news/2012/9_8_12_lab.html
113
K KorossKWS suspends 32 officers over elephant, rhino poaching, The Star, June, 8 2013, accessed January 17 2014, available here:
http://www.the-star.co.ke/news/article-123595/kws-suspends-32-officers-over-elephant-rhino-poaching#sthash
114
23
5.2.2
Challenges identified by the DPP and Kenyan judiciary to the effective
prosecution of criminal cases generally:
In 2011-2012, the Kenyan judiciary reported that 174,878 criminal cases were
issued in Magistrates courts and 158,161 cases were resolved.115 This means that
just under 17,000 cases issued in the same period remained pending.
In the strategic plan published by the DPP for the period 2011 to 2015, the DPP
recognised that during the previous strategic plan it had faced the following
challenges:116

Bureaucratic and operational bottleneck
(a)

Inadequate resources
(a)

It was also realised that although the DPP had delegated
Prosecution Powers, it lacked the capacity to effectively
supervise these functions to facilitate effective delivery of
justice.
Lack of independence
(a)

The Office of the DPP was constrained by insufficient
human, financial and other resource requirements that were
critical in the implementation of the plan.
Inadequate supervision of delegated prosecutorial function:
(a)

Due to centralised operations at the State Law Office,
procurement processes, manual systems and delay in
approvals, some of the implementation efforts were halted,
resulting in a general slow-down of implementation of the
Plan.
It noted that during the plan period, the DPP was a
Department in the State Law Office and lacked operational
autonomy to effectively execute its mandate. During the plan
period also, the effectiveness of the Office of the DPP was
also hampered by lack of security of tenure for the DPP. This
made the Office open to political interference.
Lack of Central Facilitation Services
(a)
In terms of physical location, the DPP was detached from the
State Law Offices, hence it did not have adequate facilitation
from the State Law Office, hampering the delivery of its
services.
115
Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012).
116
Office of the Director of Public Prosectutions, Strategic Plan 2011 - 2015, March 2012, pages 15 & 16, accessed on January 17 2014,
available here: http://www.odpp.go.ke/index.php/downloads/viewcategory/5-publications
24
5.3
Appeals
Cases from subordinate courts may be subject to a first appeal from the High Court and a
second appeal to the Court of Appeal.117
The first appeal may be raised on a matter of law and/or fact (Section 347 of the Criminal
Procedure Code).118 In the case of a guilty plea, an appeal can only be pursued in relation to
the extent or legality of the sentence (Section 348 of the Criminal Procedure Code).119
Appeals to the High Court in criminal matters are heard by two judges of the High Court,
except where the Chief Justice directs that the appeal may be heard by one judge (Section 359
of the Criminal Procedure Code).120
Appeals to the Court of Appeal may only be raised on a matter of law (save for certain
exceptions as set out in Section 379 of the Criminal Procedure Code) and will not allow
appeals concerning matters of fact or the severity of sentence except where a sentence has
been enhanced by the High Court and the subordinate court has no power to pass that
sentence (Section 361 of the Criminal Procedure Code).121
In 2013, the Chief Justice of Kenya, Dr Mutunga, officially launched a new Court of Appeal
in Kisumu as part of an initiative to reduce a significant backlog of cases and severe delays.
He reported that Kisumu had the highest number of pending cases in the Court of Appeal
outside Nairobi, which necessitated the launch, and noted that:122
117

"Last year the Court of Appeal had 6,701 pending cases…Cases in the Court of
Appeal could take up to eight years to finalise because judge's vacancies
remained unfilled for years and the few on call spent more time travelling around
the country on circuits than hearing and deciding cases…

The Court of Appeal would only sit in Kisumu twice a year, and sometimes only
once…If a case was not listed in one session, one had to wait for a minimum of
eight months to go before court, and then wait a few more years on the queue to
be heard.

An analysis of the backlog in Kisumu reveals 386 criminal appeals that have been
pending since 2001…Hundreds of people serve out their sentences in full, even
when they might have been released had their cases been heard earlier.

The Judicial Service Commission has hired 22 new Court of Appeal judges in the
past two years. Additionally, it has decentralised the court to Kisumu, Nyeri and
Kenya
Law
Resource
Center,
Appeals
and
Reviews,
accessed
http://kenyalawresourcecenter.blogspot.co.uk/2011/07/appeals-and-reviews.html
118
119
120
121
January,
17
2014,
available
here:
Criminal Procedure Code (Chapter 75) Revised 2009, available here: http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweken.htm
Ibid.
Ibid.
Ibid.
122
Chief Justice Mutunga, Remarks by the Chief Justice at the Inauguration of the Court of Appeal in Kisumu, July, 1 2013, accessed
Jnuary 17 2014, available here: http://www.judiciary.go.ke/portal/chief-justice-willy-mutunga-presides-over-the-inauguration-of-anothercourt-of-appeal-in-kisumu.html
25
Malindi…Currentl,y there are 564 pending cases in the Court of Appeal in
Kisumu…".123
During a 'Judiciary Service Week' during 14 - 18 October 2013, the courts targeted the
hearing of 1,500 criminal appeals and 3,500 cases of prisoners incarcerated for petty offences.
This reportedly gave a "big boost to the clearance of Appeals in the High Court which the
whole of last year cleared 3,944 Appeals leaving a total of 10,289 pending Criminal Appeals
as at June 2013".124
Having searched the National Council for Law Reporting's online case law database, we have
located only three appeal cases relating to wildlife offences under the 1976 Act in the High
Court. The High Court in all three cases makes findings of significant procedural and/or
substantive errors by the magistrates' courts in their original decisions, and illustrative extracts
from each judgement are included below:

Samuel Macharia Mwangi & another v Republic [2009] eKLR125
“…The appellants were found slaughtering a Buffalo. They were however
charged with illegal hunting, implying that there are some hunting that are
authorised and or legal. The charge sheet is not specific as to whether the
appellants were authorised or unauthorised hunters. The charge sheet is also
silent as to whether the appellants were hunting illegally and without a licence
thereby making them poachers. The appellants perhaps should have been
charged under section 47 of the Wildlife Conservation and Management Act.
However the application of this section is dependent on the minister making
regulations to deal with possession or movement of the game meat. I have looked
at the entire Act and I am satisfied that no such regulations have been gazetted by
the minister.
Further it is noted that the penalty provided for the offences charged is a fine of
KES 20,000/= or imprisonment for a term not exceeding three years. However
the appellants herein were sentenced to ten years imprisonment each. The
sentence imposed as aforesaid was clearly illegal and definitely calls for my
intervention.[Emphasis added]
Arising from the foregoing, it is my conviction that these appeals have
tremendous merit. Accordingly I allow each appeal, quash the conviction and set
aside the sentences imposed on each appellant. The appellants and each one of
them shall be set at liberty forthwith unless otherwise lawfully held.”

Koyet Lemusini & 4 Others v Republic [2011] eKLR126
“On 22 December 2010 the charges were read out to the accuseds and they
pleaded guilty to Count No. 2 and 4. The facts were not read out to the accused
as is required by law. Instead the prosecutor merely stated:
123
Odour Omondi, CJ: Kenya's Criminal Justice system is 'criminal', News24 Kenya, July, 3 2013, accessed January 17 2014, available
here: http://m.news24.com/kenya/MyNews24/CJ-Kenyas-Criminal-Justice-system-is-criminal-20130703;
124
Republic of Kenya Judiciary Media Brief, Summary of the judiciary service week, November 15 2013, accessed January 17 2014,
available here: http://www.judiciary.go.ke/portal/courts-finalise-1587-criminal-appeals-during-judiciary-service-week.html
125
126
[2009] eKLR, accessed January 17, 2014, available here: http://www.kenyalaw.org/caselaw/cases/view/54332/
[2011] eKLR accessed January 17, 2014, available here: http://www.kenyalaw.org/caselaw/cases/view/74286/
26
“May the particulars be as per the charge sheet on count 2 and 4. May the
accuseds be treated as first offenders”
Firstly to declare facts to be ‘as per charge sheet’ does not fulfill the legal
requirement that the facts be read out and explained to the accuseds. The record
indicates the presence of a Masai interpreter at the time of plea. There is no
indication that the facts were translated into Masai for the benefit of the
accuseds. Secondly none of the accuseds indicated whether or not they accepted
those facts as true. Thirdly the learned trial Magistrate did not record a
conviction against any of the accuseds as is required by S. 207(2) of the Criminal
Procedure Code…
the terms of S. 207(2) are mandatory that upon a plea of guilty the court shall
render a conviction against the accused person. This was not done in this case.
The trial Magistrate merely proceeded to impose sentence. A sentence imposed
in the absence of a conviction is a nullity. Furthermore the court did not accord
each accused the opportunity to mitigate as required by law. All the record
indicates is:
“Mitigation – none”
This is improper. The Magistrate ought to have called upon each accused to
make a statement in mitigation before imposing her sentence. There is no
indication from the record that this procedure was followed. Finally I find that
the pleas of the five accused in respect to Count No. 2 and 4 were not taken in
accordance with law and/or procedure. This renders the sentences imposed in
respect of those two counts null and void and I hereby quash the purported
convictions of the 5 accused on Count Nos. 2 and 4…”[Emphasis added]

Joseph Kioko v Republic [2012] eKLR127
“Giving a summary of the facts, the prosecutor does not appear to have stated
whether the appellant herein was in possession, or was a dealer, or knew and
failed to make a report to the authorities on the whereabouts of the trophies in
question. This leaves a doubt in my mind, as to whether the facts given by the
prosecution disclosed any offence against the applicant. My view is therefore
that the appeal has overwhelming chances of success. On that account, there is
no point of detaining the applicant in custody. I will grant bail pending appeal.”
[Emphasis added]
5.4
Judicial capacity
5.4.1
Issues concerning corruption and independence of the judiciary and DPP:

127
The Chief Magistrate at the Naivasha Law Courts, Stephen Githinji,
reportedly informed a researcher for an article published in
November 2013 that most suspects of wildlife offences do not even
make it to court. They are not being arrested, he said, as a result of
poor investigations or corruption. Many cases that do come before
magistrates collapse because the prosecution has failed to follow
[2011] eKLR accessed January 17, 2014, available here: http://www.kenyalaw.org/caselaw/cases/view/81923/
27
protocol. He is also quoted to have said "When police realise that no
one is following up on their cases, it is easy for them to be
compromised and help the suspects. We need to know all cases are
tracked".128
5.4.2

During the period 2011-2012 the judiciary recorded that the second
largest number of complaints to the Office of the Judiciary
Ombudsperson were because of missing files and the fourth largest
number due to corruption. Of 9,776 recorded complaints during this
period, 2,361 were due to alleged missing files or corruption.129

WildlifeDirect has also reported missing court files when searching
court records in relation to specific cases of prosecutions of
individuals for wildlife offences.130

The Constitution of Kenya provides for an independent judiciary;
however, the President has extensive powers over appointments,
including those of the Attorney General, the Chief Justice, and
Appeal and High Court judges. The President can also dismiss judges
and the Attorney General upon the recommendation of a special
presidentially appointed tribunal. Although judges have life tenure
(except for the very few foreign judges who are hired by contract),
the President has extensive authority over transfers. In practice, the
judiciary is reported to be subject to strong influence from the
executive.131
Resources available to the judiciary:

Chief Justice Mutunga noted that during 2013, 116,754 cases were
filed in all courts across the country and another 191,903 were
resolved, leaving 657,760 pending.132 Earlier in 2013, he also raised a
number of concerns regarding the high case load of criminal appeal
cases and the significant delays in the court system caused by lack of
resource in the judiciary (see paragraph 5.3 above). In a report
published by the Kenyan judiciary for the period 2011-2012, 174,878
criminal cases were issued in magistrates' courts, 158,161 cases were
resolved and 111,340 cases were left pending.133 In the same report, it
was noted that there was a shortfall of 172 magistrates' courts across
Kenya.134
128
129
Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012) p. 33.
130
Paula Kahumbu, Kenya: Magistrates Lenient on Wildlife Traffickers, The Star, November, 29 2013, accessed January, 17 2014,
available here: http://allafrica.com/stories/201311290746.html
131
132
Hon. Dr Wily Mutunga, Reflections on the year gone by, Undated, accessed January 17 2013, available here:
http://www.judiciary.go.ke/portal/reflections-on-the-year-gone-by-chief-justice-willy-mutunga.html
133
134
Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012) - p. 26.
28


5.4.3
o
Continued underfunding from the government, which is
significantly below the internationally agreed benchmark of 2.5%
of the national budget;
o
Shocking corruption in the administrative cadres; and
o
Rising budget deficit in the judiciary.135
The KWS has also previously reported delays in the prosecution of
suspected offences caused by the lack of interpreters where the
accused is unable to speak the language of the magistrates' court.136
Expertise and knowledge of the judiciary:


135
Chief Justice Mutunga also noted a number of challenges facing the
judiciary following a review of 2013, which included:
Support or training provided has been from charities, the KWS, the
DPP and the judiciary on an ad hoc basis:
o
The charity Space for Giants in partnership with the DPP in
Kenya and the British High Commission are reported to have
designed a handbook of all of the laws that could be used to
combat wildlife crimes. In addition, with charity funding, they
plan to train KWS wildlife wardens in all elements of the
criminal trial process.137
o
There are examples of active engagement with the issue of
wildlife crimes by various stakeholders of the Kenyan judiciary.
A judicial luncheon was convened by the African Wildlife
Convention and the KWS in November 2012 to discuss strategies
to deter crimes such as poaching. The event was attended by
representatives from law firms, state law offices and the
judiciary, and focussed on the successful prosecution of illegal
wildlife trafficking, with the goal of effecting more meaningful
deterrents.138
From reviewing the limited appellate case law available from the
Kenyan National Council for Law Reporting, (see paragraph 5.3
above), these cases demonstrated significant and repeated procedural
and/or substantive errors by the magistrates' courts in hearing and
deciding cases involving wildlife offences. This, coupled with the
136
KWS, Interpreters sought in prosecution of suspected Vietnamese ivory smugglers, January, 24 2013, accessed January 17 2014,
available here: http://www.kws.org/info/news/2013/24janivorysmaggle2013.html; KWS, Chinese woman to serve a total of 31 months in
jail
for
smuggling
ivory,
August,
22
2013,
accessed
January
17
2014,
available
here:
http://www.kws.go.ke/info/news/2013/22august2013chinese.html
137
138
KWS, African law enforcement, judicial, and legal professionals jointly address wildlife-related crimes, November, 6 2012, accessed
January 17 2014, available here: www.kws.org/info/news/2012/6_nov_law_enforcement_2012.html
29
apparent lack of specific training given to magistrates in relation to
wildlife offences, suggests that there is a need to provide specific
training to magistrates in relation to wildlife offences.
5.4.4
Additional information
5.4.4.1
6.
Forensic expertise in preparing cases for prosecution:

WildlifeDirect reported in their recent study that just over 15% of
offenders who formed part of their study had their case withdrawn or
dismissed as a result of inconclusive investigations, missing police
files, incomplete case files, missing evidence, failure of the
prosecution to provide a tangible case, or the accused absconded
whilst released on cash bail/bond.139

In view of limitations caused by the lack of forensic expertise
available to prosecute wildlife offences, the KWS has reported that a
new forensic laboratory which will be the first of its kind in Africa is
due to open in 2014 to assist in the preparation of cases for the
prosecution of wildlife offences.140

KWS has confirmed that the Forensics and Genetics Laboratory will
serve three major roles, namely:
o
Boosting prosecution in the illegal trade of bush meat;
o
Advancing the prosecution of poachers and smugglers; and
o
Population genetics and melocular diagnostics.141
CONCLUSIONS
The 1976 Act went some way towards working to change attitudes to wildlife but did not go
far enough to prevent crimes against wildlife. It was probably an important step nevertheless
in helping Kenyans to recognise the importance of preserving wildlife, which was, and still is,
seen by many as a nuisance and a threat to agriculture. The 1976 Act failed to have a
sufficient deterrent effect, however, as the penalties remained comparatively minor. A number
of bodies had been critical of Kenya as a result. In particular, Kenya is considered by CITES
to be a country which has not fully implemented the CITES requirements into domestic
legislation (although this analysis was carried out before the New Act entered into force). 142
The New Act is therefore crucial to Kenya's credibility as a nation trying to protect its
wildlife. The legislation was submitted to the CITES Secretariat for review and it is possible
that the New Act will be confirmed by CITES as fully implementing the Convention.
139
140
141
142
CITES Website, accessed January 2014, http://www.cites.org/eng/com/sc/62/E62-23.pdf
30
The New Act provides a message to poachers and illegal traffickers that wildlife crime is
being taken seriously by the Kenyan Government. The most severe penalties for the most
serious offences do exceed those considered as the "minimum" benchmark for serious crimes
by UNODC (although there is also a fiscal alternative) and the ancillary offences within the
New Act which impact on the ability of poachers and illegal traffickers to function effectively
such as road blocks, restrictions on air traffic and wide-ranging powers of authorised officers,
give a much broader protection than the previous legislation. In addition, the Kenyan
Government has clearly attempted to address issues of support in the community through
public consultation requirements in relation to the creation of, and changes to, national parks
and reserves, and also by widening the compensation schemes available to include more
economic considerations. The enfranchisement of the local populations to take action
themselves also helps to reinforce this message.
Overall, the New Act provides a more comprehensive piece of legislation than the previous
provisions and has tried to address issues inherent in the previous legislation. As with any
piece of legislation however, the effectiveness of its enforcement and the level of public
support will be key and is yet to be proven. Undoubtedly, cooperation with other African
nations is beginning, as the joint task force used to create a census of wildlife in certain
regions of Kenya and Tanzania demonstrates, but this will need to be widened if the New Act
is to be truly effective.
With the ivory trade in Kenya having increased in recent years, this important piece of
legislation could make a significant difference to the campaign to prevent illegal destruction
of animals in Kenya - provided it is correctly enforced, corruption is curtailed and that it
receives the right level of buy-in from local communities, enforcement officers and the
judiciary.
6.1
Effectiveness of legislation
Enforcement of the provisions of the New Act is going to be key to its success. Investment in
additional officers of the KWS should help with this, but maintaining focus on enforcement
will be essential if the New Act is going to achieve its aim to deter wildlife criminals.
The sources we have searched suggest that penalties imposed under the 1976 Act were
applied on an ad hoc and sporadic basis. A report from a Kenyan national convicted of a
wildlife offence in 2013 also suggested that poachers are not aware of the various wildlife
offences under the 1976 Act, nor the possible penalties which could follow.143 On this basis, it
is not possible to say that the 1976 Act has acted as an effective deterrent to date.
Whilst the New Act has increased the seriousness of wildlife offences in Kenya, the impact of
the New Act relies heavily on effective prosecutions of suspected wildlife offenders and
appropriate sentences for convictions being delivered by magistrates' courts. We have made a
number of recommendations below based on the issues identified in this report which should
aid the effectiveness of the New Act in practice.
143
31
6.2
Recommendations
WildlifeDirect makes a number of detailed recommendations for reform as a result of its
recent study.144 Based on the findings in our report, we support and echo these
recommendations and our own recommendations overlap as a result of the common issues
and themes identified. In view of the importance of the effective prosecution and sentencing
of individuals accused of wildlife offences which we have identified as a key area for
improvement in the Kenyan judiciary, our recommendations are that:

formal specialist training is provided to all magistrates regarding the New Act
and ancillary legislation and the maximum penalties available;

detailed sentencing guidelines in respect of wildlife offences and ancillary
legislation are published to assist magistrates in taking a consistent approach to
sentencing across Kenya. Clear sentencing guidelines which are actively applied
by the magistrates' courts should reduce scope for inconsistency between courts
and corruption;

the DPP ensures that all prosecutors of wildlife offences are given appropriate
advocacy and criminal legal procedure training to ensure that the state is able to
conduct effective prosecutions that are not at risk of being quashed on appeal due
to procedural defects in the handling of cases;

the Kenyan judiciary introduces mandatory procedures to ensure that all court
files are stored securely and uploaded to a central electronic database within 24
hours of each hearing. This will ensure that the court record is not lost if the hard
copy file is subsequently lost or goes missing;

the Kenyan judiciary publishes detailed data and statistics for all wildlife arrests
and wildlife-related offences heard in magistrates' courts on an annual basis and
shares this with all magistrates and the public. This data should be reviewed
annually by an independent body appointed by the Kenyan judiciary. Any
anomalies which do not accord with the proposed sentencing guidelines outlined
above should be raised directly with the individual magistrate by the independent
body to ensure that there is no evidence of corruption or further training required.
Equally, any anomalies in the process of arrest and prosecution of wildlife
offences should also be reviewed by the independent body to identify areas for
further training or investigation where corruption is suspected; and

the KWS actively engages with local communities as part of a comprehensive
nationwide programme to promote the benefit of wildlife conservation in
conjunction with the legislative framework of the New Act, in an effort to
increase awareness, deter the local Kenyan population from committing wildlife
crimes, and encourage the reporting of suspected wildlife crime and state
corruption.
144
32
DLA PIPER CONTRIBUTORS
Glen Allen, Baltimore
Ashley Anderson, Baltimore
Yasmin Bailey, London
Georgia Brooks, London
Anita Brunst, Manchester
Gillian Buchanan, Edinburgh
Ann Byrd, Atlanta
Tassanu Chutikanon, Manchester/Bangkok
Vanda Craig, London
Elannie Damianos, Perth
Roya Dehbonei, Perth
Keelan Diana, Baltimore
Abhishek Dube, Reston
Leigh Ferris, London
Rita Flakoll, London
Allan Flick, Sydney
Ann Ford, Washington
Anna Furness, Leeds
Lauren Goetzl, Baltimore
Brian Gordon, Atlanta
Mathilde Hallé, Paris
Shari Helft Lennon, Chicago
Jeffrey Herschman, Baltimore
Emma Johnston, Edinburgh
Uttara Kale, Atlanta
Jennifer Kappel, Reston
Samantha Kelly, Sydney
Robert Laird, Perth
Scott Lange, Atlanta
Kirsty Law, London
Kasia Lebiecki, Manchester/Bangkok
Michael Lebovitz, London
Anthony Lehman, Atlanta
33
Jonathan Leitch, Hong Kong
Bethan Lloyd, London
Söla Paterson-Marke, London
Mercy Mba, London
Alexander Monk, London
Heidi Newbigging, London
Supreedee Nimitkul, Bangkok
Alice Puritz, London/Sheffield
Brian Reid, Chicago
Victoria Rhodes, Leeds
Sarah Ritter, Baltimore
James Rusert, Atlanta
Ella Russell, Sheffield
Andrew Schatz, Baltimore
Jennifer Squillario, Baltimore
Claire Clayton-Steed, Leeds
Andrew Stein, Washington
Billie Stevens, Sydney
Kim Van der Togt, Amsterdam
Sydney White, Washington
Claudia Wilton, London
34
This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not be used as, a substitute for taking
legal advice in any specific situation. DLA Piper UK LLP and DLA Piper SCOTLAND LLP will accept no responsibility for any actions taken or not taken on the basis of
this publication. If you would like further advice, please speak to your DLA Piper contact on 08700 111 111.
www.dlapiper.com
DLA Piper UK LLP is authorised and regulated by the Solicitors Regulation Authority. DLA Piper SCOTLAND LLP is regulated by the Law Society
of Scotland. Both are part of DLA Piper, a global law firm operating through various separate and distinct legal entities. For further information
please refer to www.dlapiper.com
UK switchboard: +44 (0) 8700 111 111
Copyright ©2014 DLA Piper. All rights reserved. | FEB 14 | Ref: 17430460/55746215/55764850

empty threat: does the law combat illegal wildlife trade?

Transcription

Similar documents

To this: Davidsonville Wildlife Sanctuary Wetland Restoration Best

Go au naturale PowerPoint

save one, save the species

H A R L E Q U I N D U C K

Landscaping for Wildlife - University of Minnesota Twin Cities

Living With Wildlife

Gitau names youthful side for Olympics qualifiers

Davidsonville Wildlife Sanctuary Spring

The Magpie – August 2014 - The Western Section of the Wildlife