Crime and fitting punishment? Inconsistent sentences show Africa’s wildlife courts must be firm but fair

Shamini Jayanathan is a British barrister and director of Arcturus Consultancy Ltd, a criminal justice advisory service based in Kenya. She is an associate tenant of Foundry Chambers, Chancery Lane, London.

Van Nguyen must be thanking his lucky stars that he was sentenced in a Nigerian court rather than one in Uganda – in September, a Lagos Federal High Court handed him three months’ imprisonment for possession of 200kg of pangolin scales.

Similarly, Frederic Mungule might be sitting in his cell right now thinking that perhaps he ought to keep quiet about the two years he received this year for trafficking nearly four tonnes of ivory through the ports of Mombasa.

Pascal Ochiba, aged 63, will have a very different ending to his story, appearing as he did before the only specialist wildlife court in Africa this month – for the possession of less than 10kg of ivory, he will spend the rest of his life in a Ugandan prison. The entire courtroom at Buganda Road, Kampala fell silent as the Chief Magistrate, a graduate of Portland University’s masters’ programme on Animal Law and a well-known and passionate advocate for the protection of animals, expressed her frustration at this repeat offender and the need for greater deterrence for these crimes.

The huge variation in sentencing across the African continent is concerning – in Nigeria, sentencing is so lenient that it implies impunity while, for the general public in Uganda, two years for four tonnes of ivory in Kenya and life for possession of 10kg makes no sense at all.

The answer isn’t harmonisation of laws between states, although Nigeria could swiftly use an update. There is enough research that shows long sentences alone do little to deter crime. Certainty does – the certainty of being caught, the certainty of being prosecuted robustly, tried quickly and sentenced in a predictable way.

This year, in the same Kampala court, the killers of six lions in a protected area were sentenced to eight years in prison while a Congolese trafficker of 122 grey parrots received seven years’ imprisonment in a case that crossed international lines and required a joint operation involving the Ugandan army.

No two offences are the same, but the way in which courts arrive at sentence should be.

Shamini observing proceedings at a specialist wildlife court in Uganda (c) Shamini Jayanathan

Those awaiting their turn in the dock at this particular court might be forgiven for hurriedly switching their plea from guilty to not guilty. In the adjournment culture of so many courts across Africa, delay may be the accused person’s best friend – and with life looming for 10kg of ivory, those facing charges for quantities measured in tonnes now have everything to play for.

Like meerkats standing alert, prosecutors, judges and Uganda’s Bar have taken notice of this sentence – and so have civil society organisations such as the Foundation for Human Rights Initiative, which argues that life for such an offence is excessive.

Uganda’s new law on wildlife, passed in 2019, elevated penalties significantly. A repeat offender, Mr Ochiba’s third strike for possession of a protected species has landed him in prison in a country where life means life – or maybe doesn’t. It might mean 20 years. The legal fraternity in Uganda is still waiting for clarity on this issue.

Ivory consignment seized in Uganda (c) URA

In the absence of prescriptive sentencing guidelines for wildlife – or any – crime (drafted in 2017 but never implemented), this magistrate has exacted the maximum sentence available to her. In doing so, she may have accelerated the need for Uganda to properly address the issue of sentencing, something the judiciary has dithered about for too long.

In Tanzania, the Court of Appeal quoted the case of Regina V Mayers of 1953 in stating that maximum sentences should be imposed rarely and reserved for the most shocking cases – “Otherwise, it is inappropriate”.

Possession of less than 10kg of ivory perhaps isn’t the worst example of this type of offence, notwithstanding that Mr Ochiba clearly hadn’t learned his lesson when he appeared before the same court in 2017 for similar offences. He has always pleaded not guilty and so deserves no credit. However, to shoot from an 18-month term of imprisonment imposed in 2017 to a life term in 2022 is disproportionate.

Prescriptive sentencing guidelines – such as those adopted in Ghana and Tanzania for certain offences – can provide for a more consistent approach and, crucially, ensure a degree of predictability in outcome.

This Ugandan ‘wildlife court’ is seen as a model for its ability to manage cases efficiently and the experience of the judicial officers who are well versed in the issues concerning such crimes. The comments made by this particular magistrate revealed a thorough understanding of international wildlife trafficking and its impact.

Pangolin scales and ivory seized in Nigeria (c) Nigeria Customs Service

However, this case doesn’t bind any other judicial officer and so the risk remains that another magistrate could do something quite different. A good example sits in Zimbabwe, where Kholwani Luphahla is serving nine years in prison for killing a python which ate his goat, whereas a nearby court gave another individual a $400 fine for the same offence.

A discussion with the defence team for Mr Ochiba reveals that an appeal is much-needed to test this case in the higher courts – but someone needs to help him pay for it.

It is hoped that in the absence of prescriptive sentencing guidelines or any guidance on life sentences and tariff setting, the prosecution will also play its part in pushing such cases further up the chain to the Supreme Court. In Malawi, the Director of Public Prosecution is robustly pursuing appeals to ensure that the sentencing guidelines on wildlife crime receives a thorough ‘test drive’ through the courts.

In the meantime, in a country where the average life expectancy is 64, Mr Ochiba’s case and its impact on sentencing may leave a legacy that goes beyond his 17 grandchildren.