Much of this progress can be attributed to the multi-agency focus on wildlife crime, reforms in legislation, training of anti-poaching forces on the ground, and development of new standard operating procedures for prosecutions. An enormous investment has gone into training investigators, prosecutors and magistrates, and the country has participated fully in international efforts to crack down on wildlife crime cartels.
However all of these successes are built on quicksand. They could vanish in an instant because a solid foundation of good governance is lacking, especially in the court system.
My NGO WildlifeDirect has been independently monitoring wildlife trials in Kenyan courts since 2008. In particular, we have been closely following the notorious case of an ivory trafficking suspect, Feisal Mohamed Ali. If convicted, Ali and the other 4 accused persons face a minimum fine of Ksh 20 million and/or life imprisonment. This trial is seen as a landmark case that will define how Kenya deals with wildlife crime.
It took 7 months for the authorities to arrest Feisal. He was among 6 suspects apprehended following the seizure of 2 tonnes of ivory at Fuji Motors car yard in Mombasa in June 2014. However he was able to escape shortly afterwards and remained at large until Interpol, at the request of the Kenyan government, issued a red notice alert (equivalent to an international arrest warrant).
Newspaper advert placed by WildlifeDirect after Interpol issued a red alert for the arrest of Feisal Mohamed Ali on suspicion of ivory trafficking Photograph: WildlifeDirect
This led finally to his capture in in Dar es Salaam in neighbouring Tanzania on December 23 2014 and he has been on trial in Mombasa ever since. However, the ongoing process continues to face monumental challenges.
The major evidence in the case, 9 motor vehicles that were under police custody, have allegedly “disappeared” and a ruling on the inquiry as to the evidence tampering is yet to be delivered.
At one point, the magistrate handling the case granted Mr Ali bond, thus overturning a previous high court ruling. A few weeks later, a new magistrate was assigned to the case. She opted to restart proceedings, but within days, the scene of crime, the Fuji Motors building in Mombasa, was demolished.
Members of WildlifeDirect’s courtroom monitoring team have been threatened by thugs on the stairs of the Mombasa court.
Thanks to the firm stand taken of the state prosecutor in opposing bond, civil society pressure and high-profile media coverage of the case, for now Ali remains behind bars, despite the efforts of the four lawyers defending him in court.
While all the attention is on high level trials, we are in danger of losing sight of the real problem that this and other cases spotlight: the role of corruption in undermining the rule of law. Despite an overall improvement in trial procedures, our courtroom monitors continue to report numerous cases where suspects of serious crimes get off scot free.
What is worse is that there are no consequences for those responsible. Virtually none of the officers involved in case like these are ever disciplined, let alone sacked or prosecuted.
It’s true that in many cases it’s hard to distinguish corruption from simple inefficiency. But whether the officers involved are complicit in corruption or simply incompetent, it is unacceptable that Kenyan tax payers continue to pay for their salaries.
Corruption is the elephant in the room. What message does it send to fellow officers when a policeman commanding a station gets away with hiding or falsifying evidence? We are wasting our time in waging a war against wildlife criminals, when corrupt officials face no consequences for their actions and inactions.
The media focus is usually on corruption among high-level officers. But, as we all know, the culture of corruption goes much deeper. Shamini Jayanathan, Director of Legal Strategy at the NGO Space for Giants, told me:
Any judicial process is no stronger than its weakest link. In many cases, the weakest link in the system is a low-level official, out of the public spotlight, who is easiest to corrupt. Complex cases, prepared at huge cost, can easily founder in a mire of petty corruption that manifests itself in lost evidence, arbitrary decisions in the courtroom, mislabelled files or “innocent errors” on charge sheets.
There is little point in launching large-scale investigations against high-level criminals as long as low-level officers are able to compromise the cases with impunity.
Endemic corruption also undermines wider efforts to enforce the rule of law. The support of communities is essential for the success of protecting wildlife. But if communities have no faith in the rule of law, if they continue to see poachers walk free, even when they have been caught red-handed, they will conclude that there is no point in informing authorities when they witness a crime.
We must have the courage to go after corruption because not dealing with it effectively has wider consequences for the whole of Kenyan, and indeed African, society. Newspaper headlines every day reveal that we are living in an era of corruption. Corruption interferes with every aspect of our lives and pervades every single area of work, including courts, jails, police stations, and state authorities.
Corruption infects every fibre of our lives because it’s really about the corruption of our values. The collective shame lies heavily on our identity. It crushes all our dreams and aspirations.
Kenya is currently witnessing a huge groundswell of interest and support for wildlife conservation. This World Wildlife Day, we need to get serious and re-frame the war on poaching and wildlife crime as a fight against corruption.
However, although corruption has often been identified as a major threat to wildlife, nobody seems to know what to do about it. Well here are is a suggestion. For the moment, we should forget about spending millions in going after high level criminals, and start investing in addressing the low level corruption.
There are some welcome signs in Kenya that the tide is turning in this direction. Yesterday, four police officers, bodyguards of a high ranking government official appeared in court, for attempting to sell ivory valued at more than USD 5,000 in Nairobi.
Richard Leakey, Chairman of KWS told me: “a year ago, KWS officers would not have been able to arrest such high-ranking people. The case would not have been made public in the press, and no charges would have been brought”.
This is an example of the kind of firm action that is needed, all the time and everywhere. Anyone proved to be involved in undermining criminal cases should be demoted, sacked and/or prosecuted, as a deterrent message to all government officials.
Until we change the perception of people at all levels in the system that low-level corruption has no consequences, criminals will continue to walk free, undermining all our best efforts to protect wildlife.