5 January 2018

Kenya: Why Prosecuting Cases Affecting Wildlife Is Key to Conservation Efforts

Photo: East African
Mikumi National Park in Tanzania is rich in wildlife. Located between the Uluguru Mountains and the Lumango range, tourists can spot a lot of wildlife such as cheetahs, lions, elephants, buffalos and rhinos. It is ideal for a day trip, or a longer stay.

Illegal entry into national parks, game reserves and other protected areas is the most rampant wildlife crime in Kenya.

However, prosecution of such offenders is fraught with numerous challenges that make the cases complex. Among these is how to balance the interests of communities around these protected areas and how to store the exhibits used as evidence.

According to Ms Didi Wamukoya, pastoralists living around parks are most notorious for getting into protected areas. Such cases are common in Laikipia and Samburu counties but fewer in the Coast, with Tsavo National Park reporting fewer incidents of pastoralists entering the park illegally.

FOREST

"When you charge someone with introducing livestock in a protected area, you have to consider the heads and you have to keep them as exhibit," says Ms Wamukoya, the law enforcement manager at Africa Wildlife Foundation (AWF). "Where do you get a temporary pen to hold them? We end up destroying the forest environment by keeping those cattle."

This becomes all the more tricky when suspects plead not guilty. That means the Kenya Wildlife Service has to designate rangers to take care of the impounded livestock.

"The law says that after the case is completed, the livestock have to be forfeited to the State," she says. Sometimes, however, this is easier said than done.

If the animals are photographed and then handed over to their owners to await the determination of the case, it becomes difficult for the State to seize them, especially if they were on transit to other areas.

At any rate, such an offense attracts a fine of Sh30,000, which is easily paid by the cattle owner and not the herdsmen who are the ones usually arrested.

PRISON

When a proposal to increase the fine to at least Sh100,000 and a prison term not exceeding one year, the proposal was rejected by Parliament. Legislators from pastoral communities strongly opposed it on the grounds that it would harshly affect the pastoralists' way of life.

Notably, those taking cattle into parks take advantage of the rich natural resource to fatten the animals before they have them exported to the Middle East.

"Elephants are dying," says Ms Wamukoya of the dangers posed by illegal entry of livestock into parks. "We want them to die of natural deaths not predetermined deaths. And when tourists come, they complain that they see more cows than wildlife. This is why illegal entry into parks is a major headache."

Increased human population is also contributing to human-wildlife conflicts. To reduce this, conservationists have been advocating for innovative ways to encourage those living around parks to co-exist peacefully with wild animals.

The interventions so far include discouraging planting of crops such as tomatoes and watermelons, which attract wildlife into farms. They also set aside designated areas nears parks where animals can graze.

WILDLIFE CRIME

In some regions, they have supported tourism-based projects and enterprises.

Wildlife crime is ranked third as the most rampant internationally, after trafficking of narcotics and humans. Kenya is listed by the Convention on International Trade in Endangered Species (CITES) as among the world's most complicit countries in ivory trafficking and elephant poaching.

Globally, as of 2013, it was estimated that the value of money lost to wildlife crime was between $7 billion and $10 billion.

"Wildlife crimes in Kenya on a daily basis add up to a small percentage as compared to the rest like murder and theft, but has a huge impact on the international scene," says Ms Wamukoya.

And challenges abound. Once, when some suspects were arrested with love birds, they allowed them to fly away and the evidence literally escaped. In another incident, chameleons destined for export illegally disappeared after blending into thin air.

In Kenya, law enforcement has also frustrated prosecution of wildlife crimes.

COURTROOM

A courtroom monitoring report compiled by Wildlife Direct, a conservation lobby group, shows that between 2008 and 2013, Kenya was a safe haven for wildlife criminals owing to weaknesses in the legal chain.

When she embarked on prosecuting wildlife crimes cases and was working with the Kenya Wildlife Service in 2008, Ms Wamukoya says the offenses were regarded as petty and low profile ones. The penalty was community service that involved sweeping the court room or cutting grass for a day.

A prosecution unit for wildlife crimes was first established in 2009 and Ms Wamukoya was picked to head it.

"We went to court with our combat uniform, which brought a lot of attention. We addressed the court on the seriousness of the crime and there was a change in a span of six months. The community service kind of punishment changed to fines of Sh40,000 or a jail term," she recalls.

Even though this was considered an improvement, it was still a setback since the fine was not equal to the loads of cash made from elephant tusks at the time.

In December 2012, poaching of wildlife escalated in Kenya and across Africa. This was the time when police prosecutors were phased out and replaced with State lawyers.

The wildlife section had 20 such prosecutors. Their departure created a loophole that abetted poaching on a wild scale.

PENALTY

A push for harsher penalties for wildlife crimes was thereafter ignited by the Kenya Magistrates and Judges Association (KMJA), the Office of the Director of Public Prosecution and conservation lobby groups. The following year, the Wildlife Conservation Management Act, 2013 was enacted.

Under this law, the penalty for any crime against an endangered species was enhanced to a fine of not less than Sh20 million or life imprisonment. Possessing, dealing or manufacturing of wildlife products could see one fined a minimum of Sh1 million or imprisonment of not less than five months. However, it has become difficult to implement this law because it was wrongly drafted.

A section of the law provides a penalty without an offense while another lumps all offenses together. For instance, how is one to fine a person found with bush meat? Will he face the same penalty as one found with a rhino horn?

"With possession of bush meat for subsistence, one is fined a maximum of Sh30,000 or Sh200,000 if it's for trade," says Ms Wamukoya. But how will one tell if the suspect is carrying meat for subsistence or for sale?

GAME TROPHY

Despite these challenges, Ms Wamukoya says that the introduction of sniffer dogs has resulted in more arrests and large seizures of game trophies at both the Jomo Kenyatta International Airport in Kenya and Entebbe Airport in Uganda.

The sniffer dogs have also led to dwindling numbers of wildlife trafficking, which indicates that traffickers have been scared away or have changed routes.

The report by Wildlife Direct indicates that in 2014 and 2015, there was a large number of cases that were successfully prosecuted. This signalled an improvement in law enforcement for these crimes.

The first major ivory trafficking trials were carried out in these two years but sadly, did not result in a conviction. There was, however, an increased number of those who ended up serving jail sentences for wildlife crimes.

There was also a significant increase in the number of accused persons. Most, of course denied committing the offenses.

FINES

This was largely attributed to the fact that the law had brought about higher fines and penalties that led many accused persons to be denied bond. Earlier, many would plead guilty because the fines were lighter.

By the time the Wildlife Conservation and Management Act, 2013, took effect in January 2014, the number of wildlife prosecutors had increased to 35.

At the time, Mr Philip Murgor was the Director of Public Prosecutions, a position now held by Mr Keriako Tobiko.Data from the Wildlife Direct report shows that between 2008 and 2015, there was a notable proportion of offenses which related to illegal entry into protected areas as well as unauthorised logging in protected areas.

The data also shows that there were few prosecutions for introducing livestock into protected areas even though this practice was widespread.

At the end of year 2015, illegal entry accounted for 34 per cent of the offenses in the wildlife trials that were concluded.

The least common offenses were hunting at three per cent, marine extraction at two per cent and introducing livestock and residing in parks at one per cent.

LOGGING

Illegal logging was second most common at 27 per cent, followed by possession of game meat (17 per cent) possession of wildlife trophies (eight per cent) and introducing snares (seven per cent).

The report reveals that more elephants than rhinos were killed by poachers.

It further revealed that offenses involving wildlife meat targeted animals such as dik-dik, hartebeest, warthog, wildebeest, giraffe, zebra and kudu while lions, leopards and cheetahs were killed for their teeth, skin and claws.

Illegal trade in live animals such as reptiles and birds involved snakes and eggs.

Wildlife crimes are usually committed alongside trafficking of narcotics, illegal human trade as well as firearms and terrorism.

While terming wildlife trafficking as an African problem, Ms Wamukoya believes that more sensitisation on the conservation of wild animals would bring about positive results.

mkakah@ke.nationmedia.com. @maureenkakah

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