JAYANATHAN: Delay in wildlife trafficking cases, lenient sentences reflect criminal justice system status

As Fredrick Sababu Mungule and James Ngala Kassiwa stood scowling in the dock of Mombasa law courts in March this year, their conviction and two-year sentence for trafficking of nearly four tonnes of ivory came as a surprise to nearly everyone present.

For Kenya, this represents the second successful prosecution of ‘high level’ players in international wildlife trafficking. The first, of Feisal Mohamed in 2016, was a short-lived success given his appeal against conviction succeeded two years later. This trial had taken nine years and the same two men had been acquitted barely a month before in relation to another seizure made of 1,883kg of ivory in Singapore. An appeal is inevitable.

How can a trial take so long? How can the sentence be so lenient? How could the Singapore seizure be separated rather than joined with this offence given the overlap in witnesses and modus operandi? The familiar cries of corruption and incompetence arise.

We must pause, however, and place this case in the context of a Kenyan criminal justice system that is still maturing.

The seizures in Singapore, Mombasa and a third – in Hong Kong (1,300kg of ivory also linked to Kenya) – were made in 2013. That same year, Kenya, like her neighbours Tanzania and Uganda, was identified by CITES [the Convention on International Trade in Endangered Species of Wild Fauna and Flora] as being at the heart of the unprecedented rise in the killing of African elephants along with five other countries representing transit and destination points. This ‘Gang of Eight’ were threatened with sanctions.

At that time, Kenya’s prosecution service was still in its infancy. When established as an independent office under the Constitution in 2010, it numbered around 70 prosecutors for a population of over 40 million. The majority of prosecutions were still being conducted by the police, just like in England and Wales in the early 80s before the birth of the Crown Prosecution Service.

By 2013, Kenya’s prosecution authority had more than doubled its capacity and police prosecutors were slowly being phased out. Nevertheless, it was still significantly handicapped in terms of personnel and resources. The quality of decisions to prosecute was assessed by the Independent Police Oversight Authority in a baseline survey in 2013 – it found that 64 per cent of felony cases did not meet the evidential threshold required. They were returned to investigators for further enquiries.

Out of the cases returned to investigators for further enquires, only 1.7 per cent were scored as having good directives for an investigator to follow. Few prosecution files contained a written review justifying the decisions of the prosecutor. Limited guidance – on anything - existed for prosecutors.

This is a common story across so many jurisdictions in Africa. At a symposium held in Uganda in April this year, the Director of Public Prosecutions said she required an additional 500 prosecutors to meet the workload – and that some prosecutors in her office had not received a single promotion in over 20 years. Pay was shockingly low.

A heartfelt plea to the President of Uganda was met with a commitment from him to address these issues. In Tanzania, the independent prosecution service is equally under-resourced, under-staffed and underpaid. In Botswana, prosecutions are still conducted by the police in some parts of the country. In Malawi, a similar story exists with only 40 prosecutors in the national authority.

Delay in the courts is rife across the majority of these jurisdictions. Failures in prosecution disclosure, lack of organisation of witnesses, exhibits and lack of coordination with investigators are inevitable in the context of such limited prosecution resources.

Corruption inevitably exists where the average pay for a prosecutor might be $200 a month. In judiciaries with little oversight or performance targets, it is easy for justice to be delayed and then denied.

The extradition proceedings for one criminal cartel in Kenya (eventually taken to the US without legal process) had at least 21 adjournments for funerals, sickness and ‘other reasons’. And at the end of any hard-won criminal prosecution, there is then the sentencing where anything might happen.

In Zimbabwe, one young man received nine years for killing a python that was eating his goats whilst in another court, an identical offence was met with a $100 fine.

Delay, inconsistent sentencing, and a lack of capacity in prosecution services all create an unpredictability in the criminal justice system. It is in the shadows of this unpredictability that corruption flourishes and mischief can occur.

However, there are solutions and hope. In Kenya, the prosecution service has now swelled to around 900 prosecutors. Guidelines on the decision to charge have empowered prosecutors in their role as the ‘gatekeepers’ to the criminal justice system. A disclosure policy is in its early stages and will be a first for Africa. Conviction rates overall have soared.

In 2015, the Chief Justice issued instructions to reduce delay in the criminal courts which was highly effective in a pilot scheme. This is now being rolled out nationally. Finally, prescriptive sentencing guidelines, an antidote to high minimum sentences so often advocated for by civil society – resulting only in more trials, less cooperation and injustice like the Zimbabwean man who killed the python – have been developed in Uganda, Malawi and soon will be in Kenya.

By creating stronger prosecution services, faster trials and predictability in sentencing, the risk of corruption is mitigated, and the efficiency of the criminal justice system enhanced. We must remember that whilst the UK, the US and other global north jurisdictions have been working on these issues for decades, the majority of African countries have held autonomous and independent prosecution services for 15 years or less.

It is absurd to tell a prosecution authority in these places to prioritise pangolins and parrots over defilement and corruption cases. Training alone of prosecutors and judges does little to ease the bottleneck created in the courts by poorly managed criminal cases that are in abundance in so many jurisdictions.

The commitment we need from governments is not to fight wildlife crime as such, but rather to invest properly in their own criminal justice systems, although improving the capacity of the system to fight wildlife crime will inevitably produce dividends for the delivery of justice for all crimes.

This means resourcing prosecution and judicial services, enabling digitisation, performance management, and a centralised intake of cases. Government lawyers need to be paid well to attract and retain professional expertise. And though it sounds counter-intuitive, it is vital to offer free representation for defendants who cannot afford it. Unrepresented defendants slow things down.  

We don’t need to worry about wildlife traffickers abusing free representation – they have their own lawyers, sometimes from their own embassies, on speed dial.  

It doesn’t matter how many media stories we see about anti-poaching operations, and large-scale seizures of wildlife trophies. Ultimately this alone will not win the battle. Photos of a container load of ivory tusks or occasionally the picture of a glum looking fellow in handcuffs holding up a leopard skin, are compelling to global audiences. But these represent only a setback rather than an end to the ongoing destruction of the world’s biodiversity.

The real story is unfolding in Africa’s hot and dusty courtrooms. This is where the investment is needed – in a way that delivers security and justice for all.

Shamini Jayanathan is a British lawyer (barrister) based in Nairobi.

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