CONSERVATIONISTS UPSET OVER 1 MILLION FINE FOR CHINESE IVORY SMUGGLER
(Posted 02nd February 2014)
Kenya’s judiciary took another blow to its chequered reputation, when only a day after 40 magistrates had participated in a workshop about the new wildlife laws, and less than a week after the first landmark ruling which fined a Chinese blood ivory smuggler to 232.000 US Dollars (20 million Kenya Shillings) or 7 years in prison, another magistrate defied expectations and handed down a fine of 1 million Kenya Shillings only.
This prompted immediate suggestions, amid a firestorm of outrage on the social media, that the magistrate in question may have been ‘gotten to’ and one regular commenter from Nairobi vowed to report such cases to the judicial service commission for investigation: ‘I am consulting right now how best to accomplish that but every single under value conviction should from here on be investigated for foul play. Questions must be asked of such magistrates if they have been corrupted or threatened or for whatever other reasons they could have avoided using the full strength of the law. When I read that a man having sex with a goat is sentenced to 20 years in prison and then I read that an ivory smuggler gets away with a million shilling fine, something is completely wrong in our legal system. People are sent down for years for stealing from a neighbour’s laundry line or stealing food and those guilty of sabotaging Africa’s and Kenya’s economy by poaching elephant and rhinos are let off so lightly. I hope the prosecution will appeal that low sentence and that the magistrate can be named and shamed. These fellows should be aware that they will from now on be under the spotlight and be hang out to dry if they do not meet sentencing expectations. They must from here on be accountable to the people in what they do and no longer hide behind the obscurity of the bench’.
Meanwhile has Kenya’s if not Africa’s Elephant Lady Dr. Paula Kahumbu, written an extensive article during last week which was published in the Star Newspaper in Nairobi:
Start quote:
Kenya: New Wildlife Law Makes Catching Poachers Easier
By Paula Kahumbu, The Star
30 January 2014
2013 may have been the worst year for rhino’s on record with over 1,000 killed for their horns, mostly in South Africa. The rate of killing is nearly doubling every year in Kenya, and in Mozambique they have been poached to extinction. Elephants are being gunned down at a rate of nearly 100 per day across Africa.
The Kenya Government is taking it seriously and threaten that the noose is tightening on the throats of those who poach our wildlife and traffic ivory and rhino horn. A monumental shift in cooperation across agencies in collaboration with the private sector is taking place, an inter-agency anti-poaching force is operational, and the new law is now in effect. For the first time, the President, the First Lady, the Cabinet Secretary, KWS, the Chief Justice, the Director of Public Prosecutions and even magistrates are now collaborating to ending the poaching crisis in Kenya. Poachers now fear that their time is up and they are handing themselves in rather than face life in jail, or be killed by anti-poaching squads.
On 14 December 2013, 39 year old Keleshi Parkusaa a Samburu member of the Leparua community, made a shocking confession to his elders. He told them that he had killed a rhino in Lewa Conservancy just days earlier. Lewa is a successful private conservation area in central Kenya. Parkusaa admitted that this was the second rhino he had killed, the first one was shot more than a year ago also in Lewa.
The confession, witness by his community elders, the Kenya Wildlife Service, the police, and the Lewa security forces, was held at the Lewa Conservancy headquarters. About 100 people gathered and sat in neat white rows on plastic seats. Parkusaa admitted that his confession was inspired by fear of being killed by the authorities, and of being excommunicated by his community. He said only poachers ever faced justice, and that the big players, the dealers, the corrupt police and KWS officer, even magistrates were the real threat.
Until now, there was little risk of exposure to dealers – only poachers were ever arrested and magistrates treated these crimes as petty offences and on conviction rarely sentence anyone to jail. Most offenders have been paying laughable fines and continue to repeat the offences. This is not possible anymore.
On 10th of January 2014 Kenya operationalized the new wildlife legislation with the world’s most severe penalties. Offences against all endangered species including elephants and rhinos, or their products will now attract a fine of Ksh 20 million or life imprisonment. While these penalties demonstrate the seriousness of the crimes, they will only bite if convictions can actually be achieved. Under the old law 78% of all offenders were convicted, most on their own plea of guilty. Now however, pleading guilty will guarantee an impossible to pay fine or life in prison. Poachers are better off taking their chances with not guilty pleas and hoping that they can influence the verdict. To secure a conviction therefore will require watertight evidence, excellent prosecutions and judicial compliance. This is where men like, Parkusaa comes in, they are promising to reveal all which will grant the KWS the evidence that they need to bring down the cartels
But its not just KWS. All arms of government must work in concert for the new law to have impact. The investigators, prosecutors and magistrates all must be aligned, and in preparation for this the Director of Prosecutions, the Chief Justice, Magistrates, KWS, and private organizations have come together under a series of dialogues and trainings dubbed "Wildlife Crime Dialogue" organized by the Judiciary Training Institute. This is perhaps the most exciting demonstration of commitment seen anywhere in Africa. Judge Joel Ngugi, the architect of "Wildlife Crime Dialogue" is committed to making this work and has engaged KUAPO and WildlifeDirect in planning the series of meetings and trainings. "We want to transform the way that cases are handled so that we achieve outcomes needed to deter poachers".
In the opening of the first Dialogue meeting on Wildlife Crime held on December 21st in Amboseli, the Chief Justice, Willy Mutunga committed his office to the reforms and stated
"Judicial officers and other stakeholders must engage to figure out the weakest links in the criminal justice system so that they can effectively deal with the societal mischiefs which the laws target;"
and
"Judicial officers, as citizens of Kenya, must understand the real threats environmental and wildlife crimes pose to the Kenyan society and be able to articulate this in terms of their obligations and responsibilities to the citizens of Kenya who have bequeathed to them the constitutional authority to decide cases."
The dialogue meeting was attended by magistrates, prosecutors, investigators, customs officer, Kenya Wildlife Service, NGO’s, communities and a poacher who explained to the group how corruption is at the heart of the crisis.
The one day meeting and workshop led to agreements on 25 innovative suggestions ranging reforms on public awareness, investigations, to court room practices, and cooperation between agencies and NGO’s.
There is no doubt that new laws and reform in the court process will transform the wildlife crime situation in Kenya, but as in the case of Parkusaa, it is clear that justice is not confined to court rooms and judicial chambers – and as the Chief Justice said, "the imperative is to engage with society in order to bring about justice". The role of social values cannot be underestimated, especially in communities like the Leparua who have forgiven Parkusaa on condition that he helps investigations. He will also face punishment according to the Samburu local traditions.
Though he may lose all his cows, Parkusaa is heaving a sigh of relief for his "get out of jail free" card; he knows that becoming an informer is extremely dangerous but his community will protect him. I noticed as I interviewed him that the elders had boarded vehicles to leave, but they watched us with eagle eyes and would not leave until he was in the car amongst them.
Kenya has come a long way in just 12 months. From being named in the Gang of 8 the country has seen several several campaigns to mobilize public awareness including the Hands Off Our Elephans with the First Lady Her Excellency Margaret Kenyatta, to the Elephant March in 18 cities by the David Sheldrick Trust, Kenyan United Against Poaching, and Jim Nyamu’s walks across the nation and abroad. The country has traditionally been a leader in conservation and the Cabinet Secretary has committed to the vast collection of NGO’s that her ministry will work with them for the sake of the country. All of this energy and activity is getting international attention for good reason, Kenya is now at the threshold of creating a new model for successfully ending the poaching and trafficking crisis.
With new laws, and effective inter-agency cooperation we will catch and jail the ivory dealers and cut them off from poachers which will stem the flow of ivory and quickly secure our elephants and rhino’s. It’s a realistic short term goal but we must not lose sight of the long term needs, saving Kenya’s wildlife will only be achieved when we have created real incentives for communities and land owners to actively support conservation. That is the subject of another article.
The author is an elephant expert. She is the Executive Director of WildlifeDirect and runs the HANDS OFF OUR ELEPHANTS Campaign in which Her Excellency Margaret Kenyatta is the patron. Dr. Kahumbu is a board member of Lewa Conservancy.
End quote
Watch this space for regular updates on how the new wildlife law in Kenya functions and what smugglers caught in transit at Jomo Kenyatta International Airport, or poachers, middlemen and financiers when caught in Kenya with blood ivory or rhino horns are now facing when prosecuted.
