In recent years, the commitment of the Kenyan government and its people to tackling wildlife crime has been considerable.
An enhanced Wildlife Conservation & Management Act (WCMA), signed in 2013, has significantly strengthened Kenya’s legal response to wildlife trafficking and poaching. The recent burn of $150 million worth of ivory ordered by President Kenyatta—the largest ever such burn—signaled a clear statement of determination to tackle the ivory trade. And in the courts, high-profile prosecutions are beginning to take place.
The result: an 80 percent reduction in rhino and elephant deaths from poaching from 2012 to 2015. This response has come none too soon. Kenya has been deeply affected by the global poaching crisis—it’s estimated that the early 1970s elephant population, which was 167,000-strong, has fallen to a mere 32,000, and its 20,000 rhinos to just 1,000. More elephants and rhinos were killed in 2012 and 2013 than any other year in the past two decades.
Since then, significant strides in the investigation and prosecution of wildlife crime, as well as engagement with affected communities, have been behind the improved response and consequent decline in poaching. Yet more remains to be done : more ivory is still shipped through the Kenyan port city of Mombasa than any other trade route out of Africa, and to date no high-level trafficker has been convicted and sentenced by Kenyan courts.
In this context, attention should now turn to one highly effective approach to combating such forms of organized crime (for that is what today’s elephant and rhino poaching undoubtedly is). This approach centers on the use of financial investigation, which could enhance the ability of law enforcement and prosecutors to identify the accomplices, facilitators, controllers, and support networks of those involved in this crime.
In Kenya, as in other source and transit countries in East Africa, the use of financial tools in investigations and prosecutions has so far been limited. For example, of cases monitored by WildlifeDirect’s Eyes in the Courtroom project, use of financial investigation evidence has been almost entirely absent. The exception is in the so-called Sheikhs case, which saw seven men accused of exporting thousands of kilos of ivory to Thailand and Singapore, where it is reported that some financial information requests have been made of the banking sector by government authorities, and the High Court ordered a freeze on 13 bank accounts, land and vehicles belonging to the accused.
The value of financial investigation as an evidence-gathering tool, particularly for pursuing acquisitive and economic crime, is well known. Those that seek to benefit financially from the crimes they facilitate, but do not commit the crimes themselves, are most likely to be discovered through the financial transactions that link them to those perpetrating the crime on their behalf or to the products sold for their own financial gain. While tracking the finance of low-level criminals is challenging in cash economies such as that of Kenya, those who orchestrate and control such organized crime at the higher levels rely heavily on the formal financial sector to support their network of (often transnational) operations, leaving valuable financial footprints.
As former British Prime Minister Gordon Brown once noted: “What the use of fingerprints was to the 19th century, and DNA analysis was to the 20th century, so financial information and forensic accounting has come to be one of today’s most powerful investigative and intelligence tools available in the fight against crime and terrorism.”
The value of financial investigations: Using the law
This general under-exploitation of financial evidence leads to two primary shortcomings. Firstly, as financial investigations can provide valuable evidence of additional suspects connected with the crime at hand, suspects who are often involved in broader criminality activity (so-called kingpins) remain unidentified. And secondly, sentencing is more lenient than it could be as prosecutions under financial statutes are generally addressed with harsher penalties, including asset freezes and forfeitures, than those prosecuted under the WCMA.
The fact that Section 92 of the WCMA, relating to crimes against endangered species, has been adjudged ambiguous and therefore invalid means that Section 95 of the WCMA is currently applied as a lesser alternative. This section caps sentencing at a mere 1 million Kenyan shillings (around $10,000) and/or a minimum of five years in jail, far less than Section 92’s harsher sentences of life imprisonment and/or a minimum fine of 20 million Kenyan shillings (approximately $200,000) for crimes against endangered species.
The penalties handed down to-date under the WCMA contrast with those available in convictions prosecuted under Kenya’s financial crime laws, some of which offer penalties of 5 million Kenyan shillings (around $50,000), custodial sentences of up to 15 years, and allow for asset freezing and forfeiture. Linking wildlife crime more consistently to financial crime-related legislation would be a powerful deterrent and would broaden the available tools for prosecutions and sentencing for convictions.
Revealing networks and supporters
In addition to creating a potent deterrent and avenue for prosecution, financial investigations can provide an additional dimension to evidence gathering and investigation, helping to reveal controllers, nodes, and supporters—key to the total disruption of trafficking networks. Furthermore, the financing of bail or bond postings and the ease with which those who are convicted seem able to pay their fines to avoid custodial sentences is a further area where financial investigation can reveal important information.
The assets (both cash and property) to which the accused have access for the purposes of posting bail or bond and, on conviction, paying fines often appear inconsistent with the means of the individuals in question. And, questions over how certain, relatively low-level defendants can afford high-quality legal defense suggests that a forensic review of the finances surrounding the support provided to the accused should be undertaken. None of this work is currently undertaken with consistency or rigor.
Embracing financial investigation?
Yet there is evidence of movement in this direction. The value of mobile-phone data analysis, very similar to financial-activity analysis, is increasingly appreciated and used as a tool for developing links and networks. For example, in the Feisal Mohamed Ali case, mobile phone data was reportedly used to linkthe accused to a ring of additional suspects, including through 84 calls to the alleged manager of the business where the ivory was found.
The drive to tackle corruption is building awareness of the power of economic crime-related tools and laws. For example, the removal of Kenya from the Financial Action Task Force’s so-called grey list in 2014—a list of underperforming nations produced by the global anti-money laundering and counter-terrorist financing standard setter—as a result of the country’s significant progress in improving these areas and the establishment of legal and regulatory frameworks to address its strategic deficiencies suggests that Kenya is taking its financial crime responsibilities seriously.
As the Kenyan authorities increasingly target high-level offenders for trafficking, the importance of using financial investigation to build cases and identify accomplices and networks will increase. Yet so far, financial investigation and evidence gathering have been insufficiently detailed to prosecute cases under financial crime-related legislation. In Kenya, as elsewhere in the region, the application of financial investigation against wildlife trafficking, its perpetrators and facilitators remains an as-yet unexploited opportunity to address this still relatively low-risk, high-reward form of organized crime. It is one that Kenya must urgently embrace to further the notable strides that the nation and its people have already made in the fight to protect what are now increasingly endangered species.