COLLABORATION AND COORDINATION EFFORTS IN COMBATTING WILDLIFE CRIME: A KENYAN PROSECUTORIAL PERSPECTIVE Presentation By Gikui Gichuhi Prosecution counsel Office of the Director of Pubic Prosecution (ODPP) g.gichuhi@odpp.go.ke/gikui@yahoo.com
OFFICE OF DIRECTOR OF PUBLIC PROSECUTIONS (An introduction) The ODPP is an independent office created under the Constitution of Kenya article 157, The Office is responsible for prosecuting criminal cases investigated by the law enforcements agencies in Kenya. The DPP under Article 157of the Constitution, is empowered to exercise the state powers of prosecution of crimes, including wildlife related cases; directly or through delegation of its authority to other agencies. A Public Prosecutor has a professional and ethical duty to ensure that:- Decision taken is fair, in full consideration of evidence available and as per two stage test prosecution test. Accountability in making of the decision. Decision not influenced by improper motives or undue pressure. 2 stage test - first ensure that there is sufficient evidence (evidential test),if there is sufficient evidence, secondly prosecutor must determine whether a prosecution would be in the public interest( public interest test).
Large population Expansion into large agricultural activities Increased urbanization putting strain on land and environment Human wildlife conflict Gang of 8 source and transit country in 2012 Criminal offences KENYA S COMPLEX RELATIONSHIP WITH WILDLIFE
WILDLIFE CRIMES
WILDLIFE CRIMES LEADS TO Economic Sabotage Proliferation of small arms from war-torn neighboring countries Banditry Global terrorism Piracy Human Trafficking Child Related Offences Degradation of the Environment
WILDLIFE CRIME=ORGANISED CRIME Today, it is the fifth most profitable illicit trade in the world, estimated at up to $10 billion annually, after illegal trade in firearms, counterfeit goods, drug and human trafficking. It threatens peace and security and undermines economic and civil development if countries Vast amount of money involved has a direct impact on governance leading to corrupt and fraudulent activities Gangs work with local criminals leading to increase in corruption, extortion and violence Money laundering through local and international financial systems
CHALLENGES IN PROSECUTING Higher evidential standards expected by the courts Lack of uniformity within the East African region on ivory e.g TZ on sale of ivory stock Lack of capacity both personnel and technical Witnesses fatigue and facilitation, Mistrust between the agencies, different priorities International cooperation -Different legal regimes, Lack of cooperation Investigation process and procedures deficiencies Chain of custody failures Lack of modern evidential collection and production methods e.g video facilities Difficulty in turning intelligence into evidence Lack of tracing of assets and up stream offenders Complex and new legislation
WILDLIFE CONSERVATION AND MANAGEMENT ACT 2013 Took the place of the old WCMA act and came in to force in January 2014 Enacted due to the lenient sentences under the old act which had a maximum fine of 40,000/- Old act did not recognize modern wildlife conservation measures or deal in detail with a wide range of offences such as bio prospecting, pollution, invasive species etc. The convicted offenders were typically able to pay the fine in a matter of hours and continue with the offences. Most had become repeat offenders well known to the police and KWS officers Wildlife related offences had become both a security and economic threat.
PROS AND CONS OF THE NEW WCMA Higher sentences possession of wildlife trophy min 1 million kes (10,000 usd) Possession or dealing with endangered wildlife trophy min 20 million kes (200,000usd) Wider selection of criminal offences e.g bio prospecting, pollution, armed entry into parks etc Provisions for community engagements Some sections do not have penalty clauses In some cases the high fines and imprisonment sentences typically means we have a trial on every case Higher penalties means a higher evidential burden
Fighting Back: Measures Implemented
INVOLVEMENT OF EXPERTS IN INVESTIGATION AND PROSECUTIONS
Modern equipment and technology
ESTABLISHMENT OF SCENE OF CRIME AND CHAIN OF CUSTODY PROCEDURES
COORDINATION AMONGST WILDLIFE AGENCIES
ENGAGEMENT WITH THE JUDICIARY Several National Judicial Dialogues On Environment And Wildlife Crimes bringing together the Judiciary, Law enforcement agencies, Govt. Bodies and Civil Society
CAPACITY BUILDINGS OF LAW ENFORCEMENT AGENCIES
EFFECTIVE PROSECUTION OF COURT CASES
ASSETS TRACING AND FORFEITURE Identify Tracing Seizing The Financial Reporting Center, Kenya Revenue authority Asset Recovery Agency Assets both locally and regionally to link up criminal syndicates and to freeze and seize assets of persons in courts accused of wildlife crimes Instruments of criminal activity e.g houses and warehouses that stored wildlife trophies, cars that transported the wildlife trophies
LEGISLATION REVIEW AND ALTERATIVE OFFENCES Draft amendments to the WCMA KWS,JTI,ODPP Review of criminal laws in collaboration with other agencies Lobbying of parliamentary committee on Environment Use of other Acts Anti Corruption And Economic Crimes Act Proceeds Of Crime And Anti Money Laundering Act Prevention Of Organized Crimes Act EAC Customs Act Income and Revenue tax legislation
BELOW IS THE MOST CURRENT DATA FOR OUR PERFORMANCE IN FY 2016/17 CASES WILDLIFE FOREST NO OF CASE 523 549 ACCUSED PERSONS 1038 727 TOTAL OFFENCES CHARGED 1421(including 103 offences outside WCMA) 814 ACCUSED KENYANS 915 (88%) 727 (100%) ACCUSED FOREIGNERS 123(12%) 0(0%) GUILTY PLEA 46% 55% NOT GUILTY PLEA 54% 45% CONVICTION RATE 93% 99%
WE CAN DO BETTER Plea bargaining mechanisms Restructuring of sentencing provisions Early involvement of intelligence sources at investigations e.g FRC Multiple charges Control delivery investigation systems so as to get top criminal minds Enhanced legislation Collaboration as policy e.g MAT- Presidential Initiative to fight corruption
WHAT IS KENYA PROTECTING?
QUESTIONS Gikui Gichuhi Prosecution counsel Office of the Director of Pubic Prosecution (ODPP) g.gichuhi@odpp.go.ke/gikui@yahoo.com