Shamini Jayanathan is a British barrister based in Kenya. She has previously worked with EIA in the review of wildlife legislation and criminal justice processes in West Africa.
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 crimes concerning the trafficking of nearly four tonnes of ivory came as a surprise to nearly everyone present.
For Kenya, this represented the second successful prosecution of high-level players in international wildlife trafficking in the country. The first, of Feisal Mohamed in 2016, was a short-lived success given that his appeal against conviction succeeded two years later.
This latest trial had taken nine years and the same two men had been acquitted barely a month before in relation to another seizure, of 1883kgs of ivory in Singapore. An appeal is inevitable.
The sentence and the length of time the trial took is of concern. How can a trial take so long? How can the sentence be so weak? How could the Singapore seizure be separated rather than joined with this offence, given the overlap in witnesses and modus operandi? The inevitable cries of corruption and incompetence arise.
We must pause, however, and place this case in the context of a criminal justice system that was still finding its feet.
The seizures in Singapore, Mombasa and a third in Hong Kong (1,300kgs of ivory, also linked to Kenya) were made in early 2013. Later that same year, Kenya, like its neighbours Tanzania and Uganda, was identified by CITES 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. Countries in this ‘Gang of Eight’ were threatened with sanctions.
At that time, the prosecution service of Kenya was still in its infancy. When established as an independent Office under the Constitution in 2010, it numbered just 70 prosecutors for a population of more than 40 million. The majority of prosecutions were still being conducted by the police, just like in England and Wales in the early 1980s 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 (IPOA) in a baseline survey in 2013 – it found that 64 per cent of felony cases did not meet the evidential test required and were returned to investigators for further enquiries but that only 1.7 per cent of such returns contained a ‘quality directive’ or ‘detailed instructions for the investigators to follow’. Few prosecution files contained a written review justifying the decisions on the file; limited guidance – on anything – existed for prosecutors.
This is a common story across so many jurisdictions across Africa. At a symposium for prosecutors in April 2022 in Uganda, the Director of Public Prosecutions, Justice Jane Frances Abodo, pointed out that she required an additional 500 prosecutors to meet the requirements of State prosecutions – and that some prosecutors in her office had not received a single promotion in more than 20 years while pay was shockingly low.
A heartfelt plea to President of Uganda Yoweri Museveni 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, while in Botswana, prosecutions in many parts of the country are still conducted by the police. In Malawi, a similar story exists, with just 40 prosecutors in the national authority to serve the entire country.
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.
Incentive for corruption must be acknowledged in countries 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 USA 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 exercise where anything might happen, as in Zimbabwe where one man, Kholwani Luphahla, received nine years for killing a python that was eating his goats while, in another court, an identical offence was met with a $400 fine.
Delay, inconsistent sentencing and 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 occurs.
However, there are solutions and there is hope. In Kenya, the prosecution service has now swelled to almost 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 the courts, a practice direction was issued by the Chief Justice with the support of the British Government in 2015 to reduce delay – in pilot courts trial times went from an average of 32 months to 11. This is now being rolled out nationally.
Finally, prescriptive sentencing guidelines, an antidote to high minimum sentences so often advocated for by conservation groups – resulting only in more trials, less cooperation and injustice such as our Zimbabwean friend above – have been developed in Uganda, Malawi and soon Kenya.
By creating stronger prosecution services, faster trials and predictability in outcome, the risk of corruption is mitigated and the efficiency of the criminal justice system enhanced. We must remember that while the UK, the USA 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 gender-based violence and corruption cases. The training of prosecutors and judges does little on its own to ease the bottleneck created in the courts by poorly charged criminal cases, which are in abundance in so many jurisdictions.
The commitment we need from governments is not to fight wildlife crime per se but rather to invest properly in their own criminal justice systems; to properly resource prosecution and judicial services, enabling digitisation, performance management, centralised case intake and to pay those government lawyers well.
And although it sounds counterintuitive, legal aid is vital because unrepresented defendants slow things down. We don’t need to worry about wildlife traffickers abusing legal aid – they have their own lawyers, sometimes embassy ones, on speed dial.
In the meantime, media stories continue about anti-poaching operations and large-scale seizures of wildlife trophies. Images of a container-load of pangolin scales or ivory or, occasionally, the picture of a rather glum-looking fellow in handcuffs holding up a tiger skin are compelling to Western audiences, but these represent only a disruption, not an end to the stripping down 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.