Category Archives: Hands Off Our Elephants

SGR-Nairobi National Park Dialogue Report

On 7th October, the Kenya Railways, Kenya Wildlife Service, and several conservation and research institutions agreed to hold a dialogue meeting on 27th October to address the question, “HOW CAN WE BEST ACHIEVE A BALANCE BETWEEN CONSERVATION AND INFRASTRUCTURE DEVELOPMENT IN SGR PHASE 2A?”.

176 participants engaged in the one-day discussion using the Open Space method, which was facilitated by London based firm Public Service Works. Participants of the dialogue represented a cross section of stakeholders including industrialists, landowners, community, scientists, park managers, lawyers, conservationists, park users, tourism sector, railway engineers and others. Participants engaged in 17 different meetings and conversations for which the outcomes are contained in this report. The recommendations were voted on at the end of the session. Eight major recommendations emerged all of which were urgent and important, and which can be broadly categorized into three groups.

 

  1. The participants all agreed that Kenya needs the SGR as it will spur economic growth, poverty alleviation and bring great rewards to Kenya. However, there was overwhelming support that the SGR should not go through the Nairobi National Park which would destroy the park, damage the Presidents reputation as Africa’s greatest conservation champion, and set a dangerous precedent. They agreed that the conservation reputation of the President and the nation could not be compromised and that technical and financial solutions must be found to enable it to be re-routed so that Kenya could enjoy the benefits of both the Park and the SGR. This requires engineers to work with the Kenya Railways to conduct technical assessments of alternative routes. Financial considerations to address the additional cost must be addressed.
  2. Participants expressed great concern at the apparent non-compliance with Kenya’s laws and insisted that rule of law must prevail. They agreed that the construction of the SGR must be compliant with the laws of Kenya as well as regional legislation and other environmental commitments. This includes compliance with the EMCA EIA process, the Wildlife Act, the constitution and Kenya’s commitments to bodies within United Nations such as the SDG’s. This includes ensuring that the construction of the SGR adheres to court orders.
  3. The participants agreed that a major communications campaign through the media houses was needed to promote better understanding and love of the Nairobi National Park and conservation in general. As a first step, they proposed that on 16 December 2016, a major celebration be held for the Park’s 70th birthday through school activities and involving Kenya’s First Lady.

 

As the convenor of the event, I was touched and moved by the level of engagement, the seriousness with which participants addressed the issues, the honesty and the willingness to challenge one another over such a contentious issue. This Dialogue meeting on the SGR and the Nairobi Park illustrated the power of bringing together different stakeholders to share in finding a solution and committing to participating in the actions identified. I believe that this method can become a powerful tool towards promoting public participation, building consensus and mobilizing public support and ownership of any future government project. This will accelerate progress and significantly reduce the cost of litigation.

 

This report is an actual record of the discussions and recommendations that were documented in each of the 17 meetings that took place on October 27th 2016.

We would like to thank the donors; Ford Foundation, Kenya Railways, Aga Khan University, Rex Dobie, Mpala Research Center, and Stuart Herd. We also thank Kenya Wildlife Service, Multimedia University of Kenya, and Friends of Nairobi National Park for in-kind support.  We are indebted to the 20 volunteers who assisted with managing the program.

Download Full Report Here

Paula Kahumbu O.G.W

Eyes in the Court transform poaching rates in Kenya

WildlifeDirect announces the launch of its second Courtroom Monitoring Report, detailing the outcomes of wildlife crime trials at courts across Kenya during 2014–2015. “By holding the judiciary to account, the programme ‘Eyes in the Courtroom’ provides for the first time, a window into the effectiveness of prosecutions in Kenyan courts, information which has led to major reforms in the charging decisions, filing, and management of wildlife trials”, said Philip Mugor, Chairman of WildlifeDirect-Kenya and former Director of Public Prosecutions.

 

WildlifeDirect launches wildlife crimes report for Kenya

Dear Friends,

We would like to share a report on the outcomes of wildlife crimes in Kenyan courts. We completed this report this week.

Download the WILDLIFEDIRECT court study 26.1.14

cover image

Here are some highlights

Executive Summary

This report is based on a survey conducted in May and June 2013, which looked at court records in eighteen courts adjudicating on wildlife related crime. The offences involved killing wild animals and/or trading in their products. The aim of the study was to examine the files and analyse outcomes of those cases with a view to determining how legislation in Kenya was being implemented in combating wildlife crime. The study focused on the judicial outcomes of elephant and rhino related offences, but crimes involving other species were also considered.

Between January 2008 and June 2013, a total of 743 pending and closed wildlife related cases were registered in criminal registries of law courts in Embu, Isiolo, Kajiado, Karatina, Kerugoya, Makadara (Nairobi), Makindu, Maralal, Meru, Mombasa, Nakuru, Nanyuki, Narok, Nyahururu, Nyeri, Rumuruti5, Voi, and Wajir towns. These towns were chosen because of their proximity to key conservation areas including Amboseli, Isiolo, Laikipia, Maasai Mara, Samburu and Tsavo as well as major ports through which wildlife trophies are known to be trafficked. The magistrates’ courts in these towns have jurisdiction falling within the target ecosystems. All cases are brought to court by the Kenya Police Service and/or the Kenya Wildlife Service and most are prosecuted by the Police.

A major finding of the study was that in total, only 4% of offenders convicted of wildlife crimes went to jail. In cases of offences against elephants and rhinos which can potentially attract jail sentences of up to 10 years, only 7% of offenders in this category were jailed. Though there were frequent news reports of KWS officers being arrested for involvement in these crimes, the study did not find a single verdict that highlghted this problem.

overall wildlife crimes

The study clearly showed that wildlife related crime in Kenya is treated as a misdemeanor or petty crime and is ‘mismanaged’ within the Kenyan court systems. Of the 743 cases registered that were part of the study, 70% of the case files were reported missing or misplaced in the courts. Only 202 files were available to the study team for perusal, and these were of cases against 314 offenders that had been concluded. 224 offenders (78%) were found guilty of crimes ranging from illegal hunting, illegal possessions of weapons with intent to kill animals, trespassing in protected areas, illegal possession of wildlife trophies, dealing/ trafficking in wildlife etc. No case file could be found for ivory or rhino horn trafficking in Mombasa despite frequent news reports of ivory seizures in the Port of Mombasa and allegations that Mombasa is one of the world’s most notorious ports for ivory trafficking. In Nairobi’s Makadara Court which deals with airport arrests, suspects were exclusively foreign – mainly nationals of Asian origin. All pleaded guilty but only one defendant received a jail sentence of six months in June 2013. During the period of the study, criminals were consistently given lenient sentences and fines well below the maximum of KES 40,000/= (approx USD$ 460).

composition of species

It is also apparent that poor file and case management is hindering the prosecution of wildlife related crime and that the full might of the existing law is not being bought to bear on offenders. There is a huge financial incentive for non-compliance which has led to a culture of impunity amongst the criminal fraternity and even within the government departments responsible for protecting these national assets. If this impunity is not stopped, Kenya may be viewed as a safe haven for local, as well as organized international wildlife traffickers, poachers and dealers.

RECOMMENDATIONS

 

1.     Office of the Director of Public Prosecutions (ODPP) to develop and/or adopt Standard Operating Procedures to allow sufficient time for investigation and application of appropriate laws associated with endangered species like elephants and rhino. Currently, cases of wildlife related offences are charged and disposed of by police prosecutors and are not always reported to KWS or the ODPP. As a result, poor charging decisions are rife, ancillary orders such as forfeiture are rarely applied for and sentencing powers are not fully utilized possibly through lack of awareness by police prosecutors of what is available.

 

2.     Office of the Director of Public Prosecutions (ODPP) to be responsible for charging decisions on all rhino, elephant, rhino horn and ivory cases. KWS prosecutors are gazetted to prosecute under the Wildlife Conservation and Management Act (Cap 376 of 1989) while the ODPP can prosecute under other Acts such as the Firearms Act, the Proceeds of Organized Crime Act (POCA) and (POCAMLA) or Money Laundering Act.

 

3.     Chief Justice (CJ) to assign a dedicated judge and court in each of the conservation areas and together with the Attorney General, CJ and Director of Public Prosecutions (DPP), seek agreement to take judicial notice that poaching offences are ‘organised criminal activities’, and support ODPP with adequate capacity to prosecute these under the full range of laws.

 

4.     The National Council of the Administration of Justice (NCAJ) to adopt and implement rules for streamlining wildlife trials to achieve interagency cooperation. With the enactment of the new Wildlife Act, it is foreseeable that there will be an increase in the number of trials relating to wildlife offences. The NCAJ should agree upon and implement rules for streamlining the progress between first appearance and the conclusion of the case and avoid unnecessary delays.

5.     Chief Justice to issue Sentencing Guidelines. Sentencing patterns are haphazard across the country and there is currently no consistency between courts. With the new wildlife law and possible increase in prosecutions, magistrates will need guidance on the task of sentencing e.g. aggravating features, value and quantity of the trophy, whether the defendant was in a position of authority etc.

6.     Chief Justice to issue a practice direction to the judiciary identifying compelling reasons for withholding bail in offences associated with endangered species like elephants and rhino. Bail is currently issued on a haphazard basis across the country and is hampering wildlife prosecutions.

7.     An NGO structure to support wildlife investigations and prosecutions needs to be established. In order to address the gap between law and implementation, a specialized NGO structure that collaborates closely with Government on investigations, arrest operations and prosecutions of wildlife traffickers should be established. This structure would fight corruption within the enforcement and justice system, ensuring good governance and transparency.

8.     Government to authorise an independent annual stock take and audit of all ivory and horn stockpiles, exhibits and movement of exhibits currently in Government custody. Wildlife trophies that have been confiscated are handed over to the Kenya Wildlife Service. Allowing an independent body to undertake a stock take and audit of the same would reduce loss of exhibits.

9.     Kenya Wildlife Service to transform its relationship with communities and private sector in line with provisions in the Constitution of Kenya, and empower citizens to participate in the fight against wildlife crime by encouraging them to act as independent court monitors and through the creation of a wildlife reporting hotline. The role of ordinary Kenyans is crucial and under-utilized in the fight against poaching and trafficking.

10 Chief Justice should fast track reforms in court registries on the establishment of an efficient and effective standardized case file management with rapid file call-up system (preferably digitized