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Customs officials and police chip away at plaster surrounding 1097 kg of ivory found in hollowed out timber beams seized in Mombasa in December 2016. This was the last major ivory seizure in Kenya and the only major seizure covered in this report. The lone accused, and clearing agent, Ephantus Mare, was acquitted.

Process and outcomes of ivory-related trials in Kenya, 2016–2019

by Andrew Halliday, Shamini Jayanathan, Paula Kahumbu, Jim Karani, Mary Morrison

Abstract

This article reviews the process and outcomes of 247 trials, involving 422 persons accused of possession and dealing in ivory, brought before the Kenyan courts between 2016 and 2019. Data were collected by legal interns who visited courts and studied case records. Ivory-related cases were found across Kenya, especially in Tsavo Conservation Area, Nairobi, and southern coastal areas. Most arrests followed seizures of ivory, with total seizure cases estimated at 6,500 kg. Most arrested persons were Kenyan men who pleaded not guilty to the charges. Except in the case of guilty pleas, concluding the trials was slow: more than half the trials of those who pleaded not guilty in 2016 were still unconcluded by January 2020. There were conviction rates of 88% for those pleading guilty and 68% pleading not guilty. Rates of acquittals and withdrawals were high, considering that in most cases prosecutors only have to prove possession of illegal ivory to obtain a conviction. Most convicted persons were sentenced to a fine, with jail in lieu of non-payment, typically of USD 10,000 and five years respectively, but with considerable variation and inconsistency in sentencing. The results highlight the challenges involved in assessing law enforcement efforts. We suggest doing so using intermediate-scale studies that follow selected cases from arrest to sentencing and, where possible, combined with scientific analysis to determine the provenance of seized ivory. We conclude that continued reforms in the judiciary and further strengthening of the prosecution service are required to achieve justice for wildlife in Kenya.

Some highlights from the report are as follows:
  1. This report is based on an analysis of data collected from 247 wildlife cases in 45 courts across Kenya between 2016 and 2019.  The data was collected primarily by legal interns working with Kenyan NGO, Wildlife Direct.
  2. A summary review of the Wildlife Conservation and Management Act (1989) to WCMA (2013) to the 2019 amendments was presented.  The authors conclude that at present, with sentencing ambiguities that cut across the entire criminal justice system, there is a system were “anything goes”.
  3. Most sentences were a fine with a jail option if in default of payment.  There was no consistent relationship between the amount of the fine and the weight of seized ivory. Only 7% of convictions provided for mandatory incarceration.
  4. There was a considerable discrepancy between the very large amounts of raw ivory involved in prosecutions during the study period and related elephant deaths through poaching as reported by KWS.
  5. During the study period (and up to the end of 2020), less than half  of the trials where defendants had pled not guilty had been concluded.  It was also noted that the longer-running trials are less likely to result in convictions.
  6. Data on bail and bond suggests that significant numbers of people are being held in custody for extended periods of time awaiting trial.  (This is seen through the entire criminal justice system where bail is primarily based on whether the defendant has the ability to pay, even small amounts).
  7. In prosecutions where acquittals are registered or charges withdrawn, there is scant evidence in the court records as to why. Corruption, either by bribing the magistrate or the prosecutor, or by bribing and/or threatening witnesses, is one possible reason. 
  8. CONCLUSION: “The courtroom monitoring data analysed in this study highlights some weaknesses in handling of wildlife crime cases by the Kenyan Judiciary, including faulty charging, deficient evidence handling, and inconsistent sentencing. However, our results also suggest how improving legal processes can provide greater protection for wildlife. By creating stronger prosecution services and a more efficient judiciary, leading to faster trials and consistency in sentencing, the risk of corruption is mitigated, and the efficiency of the criminal justice system enhanced.”

The PDF document can be read here: Process and outcomes of ivory-related trials in Kenya, 

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