By Juma Kwayera

KENYA: The Judiciary has come under fire from wildlife conservation groups that accuse local courts of complicity in crimes against wildlife.

The conservationists are angered by the lenient penalties meted out to people found guilty of trafficking in elephant ivory and rhino horns. Trade in parts from animals is banned under the Convention on International trade in Endangered Species (Cites). There has, however, been a rise in poaching in the last year as gangs of trophy hunters join the hunt for instant fortunes.

Conservation groups have sent emissaries to Chief Justice Willy Mutunga questioning the lenient approach to poaching and trafficking in wildlife products, which threaten the multibillion-shilling tourism industry. In a memorandum dated March 30, they raise concerns about the credibility of the judicial process. The memo, copied to Attorney General Githu Muigai and Director of Public Prosecutions Keriako Tobiko, contrasts the courts’ attitude with the grim battle in the wild, with a rising number of game rangers killed in the line of duty by poachers.

Loss of lives

Since December 2011, at least six game rangers have killed and several others injured, according to wildlife conservation agency, the Kenya Wildlife Service (KWS).

“The consequences of massive poaching and (weak) punitive measures will crush the tourism industry, heighten insecurity and put the lives of anti-poaching forces in the line of fire,” the conservationists say. They add that hard-core criminals return to poaching soon after their release on bail.

 “Kenya is now listed by Cites among the eight countries with rampant elephant poaching and trafficking of ivory and… could be sanctioned.”

Signed by the chief executives of 13 local and international organisations involved in conservation, the memorandum says: “The escalation of poaching stems, in part, from the failure to prosecute wildlife offences robustly. A culture of impunity has been fuelled among the criminal organisations involved in poaching. Record levels of wildlife crime and trafficking of ivory and rhino horn are now widespread through Kenya threatening the very survival of these and other species.”

The protest was prompted by a series of court rulings since 2010, which let Chinese trophy peddlers off the hook.    On March 26, Chinese national Tian Yi, was arrested at Jomo Kenyatta International Airport with 439 pieces of ivory weighing 16.6kg and valued at millions of shillings.

When he was arraigned before a Makadara court, he pleaded guilty and was fined Sh30,000. The penalty infuriated conservationists, who immediately began to explore ways of halting the decimation of endangered wildlife species. Part of the problem lies with the Ministry of Wildlife and Forestry, which has been slow in revising relevant laws to deal with the upsurge in poaching.

Contacted over concerns that China abets poaching by providing a growing market for illegal ivory and horns, Chinese embassy spokesperson Shifan Wu threw the ball back in the court of African elephant range states.

“China has taken enough measures to crack down on poaching in China and trading in wildlife products from outside of the country,” Wu told The Standard On Saturday. He adds that Africa should take similarly tough steps.

Unfortunately, he adds, Chinese who have been intercepted at Kenya’s exit points cannot be subjected to Chinese laws because of the different jurisdiction. Depending on the severity of the crime, Chinese courts hand out three-year minimum sentences to offenders, the stiffest being life sentences. Wu also admits to misconceptions in East Asian countries about the damage poaching causes to wildlife. According to Wu, most Chinese assume ivory falls from elephants naturally, much like human milk teeth.

Poaching in Kenya is on its way to the proportions of the 1970s and 1980s, when 80 per cent of elephants were wiped out, precipitating an international ban on trade in ivory and its products. In Kenya, the elephant population was hurtling to extinction, with less than 20,000 remaining of a stock of nearly 167,000 in the 1970s. Since 1989, when Cites banned trade in ivory, elephant numbers have rallied to the current estimated 37,000. But a rise in new poaching and a booming market in China and Japan pose new threats to elephant range states. Ivory and rhino horns are used in traditional Chinese medicine or for ceremonial dagger handles.

The Standard On Saturday is privy to details of the debate now pre-occupying conservationists. They say apart from the loss of elephants and rhinos killed for their tusks and horns, Kenya should also consider the ‘cost’ in terms of game rangers’ lives and other wildlife hunted for their skins.

In an email calling for a revision of conservation laws, Lisa Rolls Hagelberg of the United Nations Environmental Programme (Unep) says: “I, too, was quite shocked about two months ago when four people who pleaded guilty to having Sh5.4 million worth of ivory at JKIA were handed fines of about $300 (Sh25,000) each. Beyond flying in the face of the Cites findings, it also flies in the face of human rights. How can we justify killing a local poacher when we fine a trafficker what amounts to less than a speeding ticket?”

Push to change laws

The push to overhaul the laws was kicked off by Ms Paula Kahumbu, the chief executive of Wildlife Direct after examining the economic damage caused by the illegal trade in ivory. Two months ago, the organisation made an impassioned plea to the National Economic and Social Council (Nesc) “to re-examine how wildlife crimes are prosecuted”. In a dispatch released after the meeting, Nesc “acknowledged that elephant and rhino poaching is a national crisis and committed Kenya to… applying the full might of the law among other interventions”. The Nesc meeting and a subsequent sitting of Cabinet assured Kenyans that the Government would apply maximum penalties to criminals involved in illegal killing of wildlife and dealing in wildlife trophies, especially ivory and rhino horn.

Now, conservationists express regret that while the Government undertook to prosecute poachers and dealers of wildlife trophies under the Proceeds of Crime and Anti Money Laundering Act, the Prevention of Organised Crime Act, the Anti-Corruption and Economic Crimes Act and the Prevention of Terrorism Act, the courts are yet to take action. The petitioners are dismayed that the courts still treat poaching and trafficking in ivory as a misdemeanour, despite commitments made by Nesc and the Kenya delegation at Cites.