While the elephant and rhino poaching crisis spreads across Africa, poaching of elephants and rhinos in Kenya has declined by 80% in the last 3 years. This magnificent result comes as a result of major investment in law enforcement, legislation and prosecutions. WildlifeDirect’s on-going courtroom monitoring program has contributed to this success by ensuring transparency, highlighting areas where progress has been achieved, and identifying where there is still more to be done.
Between 2008 and 2013, WildlifeDirect conducted a study of wildlife trials in Kenya across 18 courts. The project, funded by the Elephant Crisis Fund (ECF), highlighted several major concerns within Kenya’s legal system: lenient penalties (maximum fines of USD 500), poor case management (70% of case files were missing or lost) and ineffective prosecutions.
Reforming the law
Underlying all these problems was the fact that wildlife crimes in Kenya were treated as petty offences. As a consequence, Wildlife Direct made 10 recommendations to address the challenges in the Kenyan criminal justice system identified by the report. Progress towards implementing these recommendations has seen some success – most significantly, in January 2014 a new Wildlife Conservation and Management Act (WCMA 2013) was introduced.
Gauging the success of the new act is critical if Kenya’s new laws are to inspire other African nations to strengthen their own legal protection of the environment. WildlifeDirect requested ECF support to conduct a further study aimed at examining the progress made in courts during wildlife related trials in Kenya in 2014 and 2015.
Creating Court Transparency
Lawyers working as interns led by Elizabeth Gitari, Legal Affairs Manager at WildlifeDirect, gathered wildlife crime data, focusing on key conservation areas across Kenya. The team examined how the new legislation was applied, how the rights of an accused person to a fair trial were implemented, and whether the sentences given for convicted persons were compliant with the provisions of the new law. Between January 2014 and December 2014 a team of 12 monitors gathered data in 50 court stations examining 330 cases and between January 2015 and December 2015, 8 monitors gathered data at 52 court stations examining 218 cases.
Previously court files were hard to find, with 70% of files missing – often the result of corrupt officials ‘selling’ the files. By 2015 94% of case files were accessible. A direct impact of this improved system is that the proportion of accused persons pleading guilty declined from 65% in 2008–2013 to 19% in 2015. The most likely reason for this increase in not guilty pleas is that suspects were deterred from pleading not guilty by the prospect of significantly higher penalties and preferred to take their chances in trials.
On the downside the increased proportion of accused persons pleading not guilty has put pressure on the courts, leading to significantly longer trials offering the possibility for corruption, or the tampering of evidence.
The proportion of convicted persons receiving jail sentences doubled, but given the low starting figure of 3% it’s clear that the overwhelming majority of convicted offenders still continue to receive non-custodial sentences. Some magistrates evidently still do not view wildlife crime as a serious offence.
While there is no doubt that the new Act has transformed the prosecution of wildlife crime in Kenya, ambiguities in the text and mistakes in cross-referencing to the schedules are providing obstacles to effectively address wildlife crimes.
Spreading Success
We’ve seen significant improvements in courtroom record keeping, the effectiveness of prosecutions, the implementation of harsh penalties in courts across the country and the prosecution of major ivory traffickers, most notably Feisal Mohamed Ali who is linked to a sezuire of 2.1 tons of ivory seized in the Kenyan port town of Mombasa. But, like elsewhere in Africa, Kenya has still not achieved the desired situation where the likelihood of arrest, the certainty of a speedy trial leading to conviction and the probability of receiving a custodial sentence have a decisive deterrent effect on wildlife criminals. To this end, the report concludes by offering a series of recommendations for the future.
The Save the Elephants / Wildlife Conservation Network Elephant Crisis Fund is proud to have supported this innovative project, and is funding a similar project to scope the possibilities of replicating the model with WildlifeDirect’s assistance in Malawi and Zambia.
Read the full report here.